State ex rel. Miller v. Miller

• Decision Date: 17 March 1911
• Citation: 21 N.D. 324,131 N.W. 282
• Parties: STATE ex rel. MILLER, Atty. Gen., v. MILLER et al.
• Court: North Dakota Supreme Court

21 N.D. 324

131 N.W. 282

STATE ex rel.

MILLER, Atty. Gen.,

v.MILLER et al.

Supreme Court of North Dakota.

March 17, 1911.

Syllabus by the Court.

The Supreme Court, in the exercise of its original jurisdiction, will, under the facts alleged in the petition and on the application of the Attorney General in the name of the state, issue its prerogative writ to enjoin an alleged new county, and those assuming to act as its officers, from exercising jurisdiction over the territory embraced within such new county until the district court, in which is pending a proceeding to determine the validity of the election at which the proposition was submitted for the organization of such county, has finally adjudicated such question.

The issue as to the validity of such election having been duly submitted to the courts for adjudication, it is a legal fraud upon the people who are interested in defeating the organization of such proposed new county, and who are consequently the real parties in interest, for the county auditor, a mere nominal party, to end such litigation in effect by the issuance of his certificate to the Secretary of State, as provided by section 2330, R. C.; his right to issue such certificate being dependent upon the validity of such election.

Certain language in the opinion in State v. Meyers, 124 N. W. 701, wherein it was held that a four weeks publication of notice of the submission of a county division proposition is essential, was inadvertently used and the same is disapproved.

Application for injunction by the State, on the relation of Andrew Miller, Attorney General, against Alexander Miller and others. On motion to quash the order to show cause. Motion denied.

Andrew Miller, Atty. Gen., J. E. Nelson, State's Atty. (W. P. Costello and Engerud, Holt & Frame, of counsel), for plaintiff. Herbert F. O'Hare, Geo. A. Bangs, and Geo. R. Robbins, for defendants.

FISK, J.

On February 18th the Attorney General, in the name of the state, filed in this court a petition praying for the issuance by this court of its prerogative writ of injunction, restraining and enjoining defendants, who claim to be duly appointed and qualified officers of the alleged new county of Stevenson, from proceeding or attempting to proceed in the organization of such alleged new county, and from in any manner hindering, preventing, or interfering with the exercise by McLean county and its tribunals and officers of jurisdiction over the territory, inhabitants, and property within the boundaries of the pretended new county aforesaid.

On filing such petition, an order was issued, requiring defendants to show cause, if any there be, why the prayer of such petition should not be granted, and in such order defendants were restrained from committing any of the acts sought to be enjoined during the pendency of such proceedings. On the return of such order to show cause, defendants appeared and moved to quash such order to show cause upon the grounds (1) that the facts set forth in the petition do not afford ground for the exercise by this court of its original jurisdiction; (2) that the facts set forth therein are insufficient to afford equitable relief; (3) that there is no equity in such petition; and (4) that the facts set forth are insufficient to justify the issuance by this court of its prerogative writ of injunction.

The facts alleged in such petition being admitted for the purpose of determining such motion to quash, we deem it advisable to set forth such petition in extenso that a full understanding thereof may be had. Omitting formal parts and the prayer for relief, such petition is as follows:

“Comes now Andrew Miller, the Attorney General of the state of North Dakota, and respectfully shows to the court and alleges:

I. That he is the duly elected, qualified, and acting Attorney General of said state, and brings this action in the name of said state and in its behalf.

II. That some time prior to the November, 1908, general election in this state there was presented to the board of county commissioners of the county of McLean a petition for the submission to the voters of said county at said 1908 general election of the question of changing the boundaries of McLean county by segregating and creating out of part of said county a new county to be known as Stevenson, the boundaries of which are specifically set forth and described in the copy of the ballot used at said election which is hereto attached and marked ‘Exhibit A’; the said Stevenson county proposition being thereon set forth at the top of the said Exhibit A, and is hereby referred to for the sake of brevity. That the prayer of said petition was granted by said board of county commissioners and thereafter there was prepared by the county auditor of said county a ballot in the form of Exhibit A hereto attached, and the same was furnished to each of the voting precincts of said McLean county to be used by the electors desiring to vote on said proposition, and said ballot also contained two other county division propositions as shown on said ballot which had been and were also submitted to the elector at said election.

III. That no notice of the election upon said question of changing the boundaries of said county, as aforesaid, was given to the people of said county in the manner or form required by law or at all, save and except that a statement that such proposition would be submitted to the voters of said county at the November, 1908, election was published in three of the official newspapers of said county once in each week during the two weeks next preceding the election, which statement was so published by including the same in and as a part of the notice of the primary election nominations of candidates to be voted for at said general election. That said notice was wholly insufficient, and, although there were at said election 3,600 electors who voted at said election in said county, there were cast less than 1,900 votes pro and con upon said proposition to create the said county of Stevenson. And plaintiff alleges that there was not a full or fair expression of the will of the voters upon said proposition.

IV. That the understanding and opinion prevailed generally throughout the county of McLean amongst the voters who knew of and were interested in said propositions to divide the county at said election that in order to adopt such proposition the same would have to receive a majority of all the votes cast by electors who exercised their right to vote at said general election, and that an omission to vote on such proposition was equivalent to a vote against the same; and misleading and erroneous literature was circulated among the voters which incorrectly stated the boundaries of the proposed new counties, and also set forth and stated that a proposition to divide the county could not be adopted, unless it received the affirmative vote of a majority of the electors who voted at the general election; and a large portion, to wit, at least 30 per cent. of the electors who voted at said general election were misled and misinformed with respect to the manner of voting upon said proposition, and particularly were misinformed and misled as to the effect of failing to vote in the negative thereon, and by reason thereof at least 30 per cent. of the electors of said county who voted at said election were induced to fail to vote in the negative on said Stevenson county proposition, who intended to do so and in good faith believed they had done so.

V. That the aggregate number of electors in said McLean county who voted the county division ballots was more than 2,800 and nearly 3,000, but of this number only 1,006 appear upon the returns to have voted in favor of the creation of Stevenson county, and all voted against the same, as appears from the face of the returns.

VI. That all the precincts of said McLean county did not make any returns to the county canvassing board of the vote upon said division proposition, or any of them. That said precincts so failing to make any returns of said vote were the precincts of Butte, Douglas, Roseglen, Whittaker, Shell Creek, and Turtle Lake, and the aggregate number of electors who voted in said precincts above named at said general election was 384, of whom, as plaintiff is informed and believes, more than 150 voted the county division ballot, but plaintiff has no information as to the number of votes for and against said respective proposition. That the county canvassing board abstracted and counted the votes and certified to the returns to the extent of the precincts which made such returns, but did not send for, or cause to be procured, the returns from the precincts above named, which omitted to send in the returns, and in that way announced and declared upon such incomplete canvass that there were 1,006 votes for Stevenson county and 811 against the same.

VII. That said county canvassing board counted and included in said 1,006 affirmative votes for Stevenson county at least 200 votes which were null and void in this, that each of the 200 voters whose votes were by the precinct election officers counted and returned as votes in favor of Stevenson county had on the same ballot voted in favor of the second proposition which appears on Exhibit A, as well as in favor of Stevenson county, although said second proposition was in conflict with the proposition to create Stevenson county in this, that the territory proposed to be created into said respective new counties in said two propositions was in part the same. That said void and conflicting votes so counted and returned, as aforesaid, were cast in the following precincts to the number set opposite the name of each precinct, viz.:

+-----------------------+
                ¦Lincoln ¦9 ¦St. Mary¦20¦
                +--------+--+--------+--¦
                ¦Curtis  ¦8 ¦Lamont  ¦5 ¦
                +--------+--+--------+--¦
                ¦Malcolm ¦4 ¦Goodrich¦30¦
                +--------+--+--------+--¦
                ¦Garrison¦80¦Mercer  ¦10¦
                +-----------------------+
                

And there...