State ex rel. Minehan v. Thompson

• Citation: 24 N.D. 273,139 N.W. 960
• Parties: STATE ex rel. MINEHAN v. THOMPSON, County Auditor.
• Decision Date: 10 February 1913
• Court: United States State Supreme Court of North Dakota

24 N.D. 273

139 N.W. 960

STATE ex rel.MINEHAN

v.THOMPSON, County Auditor.

Supreme Court of North Dakota.

Nov. 23, 1912.

On Petition for Rehearing, Feb. 10, 1913.

Syllabus by the Court.

At the general election in 1908 there were submitted to the voters of McLean county three propositions for county division, including that of the proposed county of Stevenson, concerning which the election returns from 45 only, of the 51 precincts of McLean county, were returned by the precinct election boards to the county auditor, and only such 45 precincts as were returned were canvassed, abstracted, and certified as to the result of such election by the county canvassing board, who made return that in said 45 precincts 1,006 votes favored the creation of Stevenson county, with 741 votes against its creation. No return of the votes cast on such county division proposition was ever made or canvassed or included in said return as to the six omitted precincts of Douglas, Turtle Lake, Butte, Roseglen, Whittaker, and Shell Creek; in which six omitted precincts 354 electors voted at said election, sufficient in number to have constituted a majority against county division had they all voted against such division. No proof of the result of the election is in evidence other than the certificate of the canvassing board of the county, showing on its face such omission to canvass these six precincts, and a stipulation of their omission from the returns and canvass, and that 354 electors voted in such six omitted precincts. In this mandamus proceeding, based upon the above facts, regarding which there is no dispute, in which it is sought to compel the county auditor to certify to the Secretary of State that a majority of all votes cast in said county at said election on county division was for the creation of Stevenson county, and upon his refusal to so certify, it is held:

It was the duty of the canvassing board of McLean county, under section 673, Rev. Codes 1905, to procure the returns to be made and canvassed from such six omitted precincts.

That the abstract of the vote upon such division proposition, required under section 651, Rev. Codes 1905, shows on its face that it is incomplete and but a partial canvass of the whole vote cast in the county on such question.

Such returns are prima facie evidence of the precincts canvassed and abstracted by precincts as required by statute; and where it appears on its face to be incomplete, as not including the vote cast in 6 out of 51 precincts in the county, such returns are not prima facie evidence of the result of the election as to all precincts in the county, the proof of the result of an election in 45 precincts not constituting prima facie proof as to the result of an election held in 51 precincts, the whole county of McLean.

The burden of establishing that county division carried by a majority of all votes cast in said county of McLean at said election is upon the relator, who by his pleadings and from the nature of the relief asked must establish such fact before the court can find that a majority existed in favor of such county division proposition.

Prima facie proof as to the result of such an election as to 45 precincts covered by such abstract of returns by precincts is insufficient to entitle relator to relief, the further burden resting upon him to establish that the actual vote of such 6 precincts could not in fact change the result of the election as canvassed in said 45 precincts; and there being no proof whatever of the vote on such question in such omitted precincts, and in which precincts the court will presume some vote was cast in each upon county division, it is impossible to determine that a majority of all votes cast in the whole county were in favor of county division. Accordingly, relator has not met the burden of proof upon him to establish such fact, there being a failure of proof as to what the total vote of the county was upon the proposed county division.

The petition and alternative writ alleging the submission of such question at a general election, and that the returns thereof from each and all of the election boards of all the precincts in the county were made and returned and by the county canvassing board canvassed, with the result thereby determined in favor of such county division, it is proper for a county auditor against whom the proceedings are brought to answer, on behalf of himself and parties interested, and therein put in issue matters alleged in the petition and alternative writ, and allege a failure of returns from a portion of the precincts, a canvass by the board of only a part of all the precincts in the county, and that the abstract of returns as made by the county canvassing board is incomplete and not a finding of the result of the election in all the precincts of the county, and that county division did not receive a majority of all votes cast at the election in such county on such county division proposition. Such an answer but raises issues of fact properly triable in mandamus, and the abstract of the vote of a portion only of the precincts of such county does not have the force of a certificate of election covering all precincts in said county, or preclude the trial of the issues of fact involved in this mandamus proceeding and compel the auditor to resort to a statutory contest to determine the actual result of the election.

It was proper to consider as evidence stipulated facts as to the number of electors voting at such a general election in the six omitted precincts as additional proof that the returns as certified were incomplete and as being admissible under the burden of proof upon relator under the pleadings, and also as showing facts upon which might be based the exercise of discretion by the court in the granting or denial of the writ, the right to which is not a strict legal right but discretionary to the extent that the court should not issue the writ until the relator fully prove himself entitled to the redress sought by the writ. To determine the relator's right to the writ the trial court could receive testimony, even though a prima facie right thereto had been established.

Section 168 of the state Constitution, providing that “all changes in the boundaries of organized counties before taking effect shall be submitted to the electors of the county or counties to be affected thereby, at a general election, and be adopted by a majority of all the legal votes cast in each county at such an election,” makes it the duty of the court to know that a proposed county division has been so approved by such majority vote of all electors in the county voting upon the question before the court can hold county division to have legally carried and issue the writ of mandamus asked for. Under this constitutional provision all doubt as to the result of the election must be resolved against a relator seeking to obtain a judicial determination that a new county has been so created.

To entitle relator to the writ, the burden is upon him to establish that a majority of all votes cast in said county on said proposition at the election was in favor of such county division; and, no proof having been made in this case as to the result of such election in McLean county, there is a failure of proof; and it is ordered that the alternative writ and order for peremptory writ, and the peremptory writ thereon issued, be vacated and quashed and these proceedings dismissed.

Appeal from District Court, McLean County; Crawford, Judge.

Mandamus by the State, on the Relation of M. F. Minehan, to T. E. Thompson, as County Auditor of McLean County. From an order and judgment granting a peremptory writ, respondent appeals. Reversed, alternative writ quashed, and judgment directed dismissing the proceeding on the merits.

Burke, J., Dissenting.

J. T. McCulloch, of Washburn, J. E. Nelson, of Garrison, and Engerud, Holt & Frame, of Fargo, for appellant. H. F. O'Hare, of Garrison, and Geo. R. Robbins and Geo. A. Bangs, both of Grand Forks, for respondent.

GOSS, J.

This proceeding by mandamus was brought in district court to determine the results of an election on the division of the county of McLean. Relator asks that the existence of the proposed county of Stevenson be declared and established and the county auditor be required to issue and forward to the Secretary of State a certificate certifying such county division carried by a majority of all votes cast at the election had thereon in 1908, and certifying to boundaries and name of said county. This action has twice before been before this court, in various forms. State v. Meyers, 19 N. D. 804, 124 N. W. 701; and as an incident thereto the original proceeding of State ex rel. Miller v. Miller et al., 21 N. D. 324, 131 N. W. 282. See, also, State ex rel. v. Wing, County Auditor, 18 N. D. 242, 119 N. W. 944. The first-named proceeding involved matters of pleading and practice, and whether the return of the alternative writ of mandamus in any of the many matters therein presented amounted to a defense in the light of the stipulated facts of the case accompanying the pleadings on appeal, resulting in a reversal of the judgment that a peremptory writ issue and the remanding for further proceedings to be had in the district court. Thereafter, and before trial on the merits, the auditor, disregarding the pendency of the action to determine the propriety of the issuance of the certificate certifying that the election had been carried by a majority vote, and the boundaries and name of the county, issued such certificate, forwarded the same to the Secretary of State, who in turn notified the Governor thereof, who thereupon appointed county commissioners for the county of Stevenson. Proceedings in the organization of this county were there stayed summarily by the original writ of this court, issued on relation of the Attorney General in State v. Miller, and upon final hearing all proceedings,...