State ex rel. Minehan v. Meyers

• Decision Date: 18 January 1910
• Citation: 124 N.W. 701,19 N.D. 804
• Parties: STATE ex rel. MINEHAN v. MEYERS, County Auditor.
• Court: North Dakota Supreme Court

19 N.D. 804

124 N.W. 701

STATE ex rel.MINEHAN

v.MEYERS, County Auditor.

Supreme Court of North Dakota.

Jan. 18, 1910.

Syllabus by the Court.

Proceedings for the division of a county and for the organization of new counties are strictly statutory, and no intendment can be indulged in their favor.

Such statutes should receive a liberal construction, to the end that the legislative intent may be given effect; but, such intent being reasonably apparent, it is incumbent upon those who seek to interfere with existing county organizations by the creation of new counties to at least substantially conform to the requirements of the statute.

By these proceedings it is sought to compel, by mandamus, the defendant to make his certificate to the Secretary of State, as prescribed by chapter 62, Laws 1907, relative to the division and organization of counties. An alternative writ was issued as prayed for, to the sufficiency of which defendant objects upon the ground that it fails to allege facts authorizing any relief.

Held, such objection is without merit. Such alternative writ, upon its face, shows a full compliance by the petitioners for the organization of the proposed new county of Stevenson, and others, of all the statutory prerequisites. In the petition for the organization of such proposed new county its western boundary was designated as the east and north bank of the Missouri river, whereas it manifestly appears that it was the intention of all concerned that the western boundary of such proposed new county should be co-extensive with the present western boundary of McLean county which is the center of the main channel of the Missouri river.

Held, that such manifest intention will be given effect by construing the language of the petition as designating the western boundary of such proposed new county to be the center of the main channel of such river.

The other objections urged to the sufficiency of such alternative writ cannot be considered in the absence of certain extraneous facts which have not been incorporated in the record by the settlement of a statement of case.

The trial court, on relator's motion, struck out most of defendant's answer embracing new matter of a relevant and material character, and by the same order, and on like motion of relator, the issuance of a peremptory writ was directed. Held:

(1) That such order “involved the merits and necessarily affected the judgment” within the meaning of section 7081. Rev. Codes 1905. Hence it is a part of the judgment roll proper, and its correctness may be reviewed by this court on appeal from the judgment.

(2) Such order was prejudicial error.

The record discloses that a certain stipulation of facts was used in connection with relator'ssaid motion. Held, that such stipulated facts may be considered by this court in reviewing the correctness of such order, although not incorporated in a statement of the case.

In the light of the facts thus stipulated, it is held that the statute requiring the publication for four successive weeks of a notice of election on such county division proposition was not substantially complied with. This being true, it was prejudicial error to deprive defendant of an opportunity to establish the facts pleaded in his answer, and tending to show that actual prejudice in fact resulted on account of a lack of due notice of election.

The notice given merely consisted of the insertion in the notice of the general election at the foot of the list of candidates the words, “Three petitions for county division.”

By the order in question defendant was deprived of the right to show the invalidity of the special election on such proposition by showing that there was not a full, fair, and intelligent expression of the electors upon such proposition.

After these defenses were stricken out of his answer, it was not incumbent on defendant to offer proof thereof. There was no issue left for trial, except the naked issue of a want of due notice of election, and by the order complained of defendant was wrongfully deprived of even the opportunity of showing such fact.

Appeal from District Court, McLean County; W. H. Winchester, Judge.

Mandamus by the State, on the relation of M. F. Minehan, against Paul F. Meyers, as County Auditor of McLean County. Judgment for relator, and defendant appeals. Reversed and remanded.

J. E. Nelson and Engerud, Holt & Frame, for appellant. Herbert F. O'Hare and Newton & Dullam, for respondent.

FISK, J.

This is an appeal from an order and judgment of the district court awarding to relator a peremptory writ of mandamus, commanding defendant to make his certificate to the Secretary of State, as prescribed by chapter 62, Laws 1907, relative to the division and organization of counties. Such proceedings were initiated by the issuance and service of an alternative writ reciting, in substance, the following facts: That on November 21, 1907, plaintiff and others, electors of McLean county, presented to the board of county commissioners of such county a petition for the formation of the new county of Stevenson out of certain territory in the western portion of McLean county therein specifically described; that such petition was signed by the requisite number of legal voters, and in other respects conformed with the statute; that on March 10, 1908, such board of county commissioners approved the petition, finding that the proposed new county of Stevenson could be constitutionally formed and making an order for the submission of the question of the formation thereof to a vote of the people of McLean county at the next general election. It is also alleged in such alternative writ that the county auditor caused notice to be published, at least once each week for four successive weeks next preceding such general election, in the three official papers of the county, that the question of the formation of such new county would be submitted to the voters at such general election. Then follow allegations to the effect that after such election the ballots upon such new county proposition were duly counted, canvassed, and returned, the result showing that 1,006 votes were cast “For New County,” and 741 “Against New County.” The refusal of the county auditor, Ole B. Wing, to make his certificate to the Secretary of State reciting such facts is next alleged, and also the fact that relator brings this proceeding in his own behalf and in behalf of the electors of the proposed new county.

According to the printed abstract, although the fact is disputed by respondent's counsel, defendant demurred, and moved to quash the alternative writ, upon the ground of the alleged insufficiency of the facts therein stated to entitle relator to any relief, which demurrer and motion were overruled. Thereupon defendant answered, in substance, as follows: It is therein admitted that a petition for the formation of the proposed new county was presented to the board of county commissioners, and that such proposition was by such board submitted to the electors of McLean county at the November, 1908, general election, but it is alleged, in effect, that such proposed change of county boundaries violates the constitutional provision requiring natural boundaries to be observed, in that it leaves all that part of the Missouri river lying between the middle of the main channel thereof and its east bank within the county of McLean. It is also therein alleged that two other propositions for county division were also submitted at such election. By paragraph 3 of such answer it is expressly denied that any notice of the election upon such special question of county division was published as alleged in the alternative writ, or in any other manner whatsoever, and it alleges that 3,600 votes were cast at such general election, and upon the various propositions for county division 2,750 votes were cast, and that the proposition in question received but 1,006 affirmative votes; 811 votes having been cast in the negative. Then follow various allegations tending to show laches and grounds for estoppel on the part of the relator and those on behalf of whom he sues, which allegations we deem it unnecessary to set forth. Such answer next contains the following: “Defendant, further answering, alleges that the entire vote on the question of county division was never returned to or canvassed by the county board of canvassers of McLean county; that although in each of the precincts of Butte, Douglas, Roseglen, Whittaker, Shell Creek, and Turtle Lake votes were cast on the said question of county division. No returns from the said precincts of said vote were made to the board of county canvassers, and that the aggregate number of electors who voted in said precincts at the said election was 354. That it appears from the face of the election returns from each of the following precincts that the number of the electors who voted on county division voted on the same ballot in favor of all three of the proposed changes appearing on the ballot Exhibit A, and that the precinct officers counted the same as a vote in favor of each proposition. Said precincts, and the votes so improperly counted in each as it appears on the face of the returns, were as follows: Lincoln, 3 votes; Curtis, 2 votes; Malcolm, 1 vote; Garrison, 24 votes; St. Mary, 7 votes; La Mont, 1 vote; Goodrich, 11 votes; Mercer, 3 votes. That all the foregoing facts were known to the relator, and to all others similarly situated and interested in said question of county division, but that they took no steps whatever to have said errors and omissions corrected, or to have a corrected count or canvass of all the votes on said question made. Defendant further alleges the fact to be that the actual number of electors who voted on the same ballot in favor of all three of the proposed changes was in excess of 200, and that ballots marked in the same way were counted as votes in favor of each of the three proposed...