State ex rel. McCarthy v. Fitzgerald

• Decision Date: 16 May 1887
• Citation: 32 N.W. 788,37 Minn. 26
• Parties: State of Minnesota ex rel. Michael McCarthy v. William Fitzgerald
• Court: Minnesota Supreme Court

32 N.W. 788

37 Minn. 26

State of Minnesota ex rel. Michael McCarthy v. William Fitzgerald

Supreme Court of Minnesota

May 16, 1887

Quo warranto. Upon the return of the writ the matter was heard upon respondent's demurrer to the information. The information, after setting out the legislation referred to in the opinion, alleged that after the passage of the act of 1887 an annual town meeting was held on March 8, 1887, in the borough of Belle Plaine, at the place designated, prior to the passage of the act of 1887, for the holding of the annual election of the town, and at such town meeting an election was held, at which the respondent was elected to the office of town clerk; that a portion of the voters of the town residing outside of the borough, voted at such election; that the respondent was and still is a resident of the borough and has in form duly qualified and assumes to act as the town clerk; and that on March 19, 1887, upon notice given pursuant to Gen. St. 1878, c. 10, § 51, a special town meeting was held, at which an election was held and the relator was duly elected town clerk, and thereafter duly qualified.

Let judgment be entered for respondent accordingly, with his costs.

Peck & Brown and J. McHale, for relator.

R. A. & F. C. Irwin, for respondent.

OPINION

Berry, J.

In 1868 the borough of Belle Plaine was carved out of the town of Belle Plaine, and for certain municipal purposes clothed with a distinct corporate existence; but for others, including the election of town officers, it remained part of the town. Sp Laws 1868, c. 36, § 24; Bannon v. Bowler, 34 Minn. 416, (26 N.W. 237.) As a general rule, every organized town is one election district or precinct. Gen. St. 1878, c. 1, § 2.

Under the general statute, the only place for holding the annual town meeting for the town of Belle Plaine for 1887 was at the place where the last preceding annual meeting was held in the borough. In this state of facts, the legislature, on January 29, 1887, passed an act entitled "An act to detach certain territory from the borough of Belle Plaine, Scott county, and to create therefrom a new election district," and providing that all of certain described territory, (being that embraced in the entire town of Belle Plaine,) "except the part thereof now belonging to and being contained in the borough of Belle Plaine, shall be detached from the said borough of Belle Plaine for election purposes, and constitute a separate election district or precinct." Sp. Laws 1887, c. 328.

In our judgment, the intended effect of this legislation was to divide the town of Belle Plaine into two election districts or precincts; one consisting of the borough, the other of the rest of the town; the town, however, still...