State ex rel. Luly v. Simons

• Decision Date: 18 December 1884
• Citation: 21 N.W. 750,32 Minn. 540
• Parties: STATE EX REL. LULY v SIMONS.
• Court: Minnesota Supreme Court

32 Minn. 540

21 N.W. 750

STATE EX REL. LULYvSIMONS.

Supreme Court of Minnesota.

Filed December 18, 1884.

Writ of prohibition. Warner & Stevens, John M. Gilman, and A. S. Hall, for relator, State of Minnesota ex rel.

C. N. Bell, for respondent, Orlando Simons.

MITCHELL, J.

This is an application for a writ of prohibition to restrain the respondent, a judge of the district court, from further action in proceedings now pending before him for the incorporation of certain territory as a village under the provisions of chapter 73, Gen. Laws 1883. The contention of the relator is that the act referred to is unconstitutional, because it assumes to delegate purely legislative powers to the district courts or the judges thereof. Section 3 of this act provides that any district, sections, or parts of sections which have been duly surveyed and platted into lots and blocks, and lands adjacent thereto, which said plat has been duly and legally certified and filed, may become incorporated as a village in the following manner, upon application to the judge of the district court of the county in which such lands are situated. Section 4 provides that this application shall be by petition of at least 25 electors,-residents upon the lands to be incorporated,-setting forth the boundaries of such territory, the quantity of land embraced therein, the name of such village, and the resident population, as near as may be. Section 5 provides for the posting of copies of such petition, and of notices of the time and place when and where it will be presented to the court. Section 6 provides that at the time and place fixed in said notice, upon the filing of the petition and proof of posting as aforesaid, and the map or plat of said premises, the court may proceed to hear proofs for or against the corporation of said village, and upon such hearing may take such evidence as he shall deem necessary. Section 7 provides, if the court, after such hearing, shall be satisfied of the correctness of such survey and of the legality of such plat, and that all of the requirements of the statute have been complied with; that the lands embraced in such petition ought justly to be included in such village; that the interests of the inhabitants will be promoted thereby,-it shall make an order declaring that such territory, the boundaries of which shall be therein set forth by metes and bounds, and which may be enlarged or diminished by such court from the boundaries specified in said application as justice may require, shall be an incorporated village by the name specified in said application, and in such order it shall designate three persons,-electors residing on said territory,-whose duty it shall be to give notice of an election in said incorporated village, as provided by section 10 of this act. Section 8 requires that such petition and order shall be filed in the office of the clerk of the court, and that he shall forthwith notify the persons designated in said order of the filing thereof, and that a certified copy thereof shall be filed in the office of the register of deeds, and be by him recorded, and thereupon said village shall be duly incorporated by the name designated in said order. Section 9 provides that any district which may be set apart by an order of the district court, and shall organize as such municipal corporation by the action of the inhabitants thereof in the manner and form hereafter provided, shall be endowed with all the powers incident to municipal corporations. Section 10 requires the three persons designated for that purpose in the order of the court, to give notice to the electors to meet to organize under the provisions of the act, and to elect officers for the ensuing year. It also provides for the manner of holding and conducting such elections.

It will be observed that under the provisions of this act the legislature has not, except as to certain preliminaries, determined or defined the facts or things upon the existence of which the territory shall be incorporated as a village. It will also be observed that the duty of the court is...