State ex rel. Minehan v. Thompson
| Decision Date | 23 November 1912 |
| Citation | 139 N.W. 960,24 N.D. 273 |
| Court | North Dakota Supreme Court |
On petition for rehearing February 10, 1913.
Appeal by defendant from a judgment of the District Court for McLean County, Crawford, J., in a proceeding to determine the result of an election on the division of McLean county.
Reversed and dismissed.
Judgment entered in the District Court granting a peremptory writ requiring appellant to issue the certificate of the division of McLean county and the territorial limits contents and name of the proposed new county of Stevenson quashed and set aside, and judgment entered dismissing this proceeding on the merits.
H. F. O'Hare, Geo. R. Robbins, and Geo. A. Bangs, for respondent.
McCulloch & Nelson, and Engerud, Holt, & Frame, for appellant.
OPINION
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. 19 N.D. 804, 124 N.W. 701; and as an incident thereto the original proceeding of State ex rel. Miller v. Miller, 21 N.D. 324, 131 N.W. 282. See also State ex rel. Minehan v. Wing, 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 ex rel. Miller v. Miller, and upon final hearing all proceedings, including said certificate so issued, were vacated, and the status quo reinstated pending trial in the district court of this case now here on appeal from that court's decision, granting the peremptory writ, and in effect thereby adjudging legal the foundation for the organization of said Stevenson county. The case is now before us on the merits under the issues joined by the petition and alternative writ and the return thereto of the auditor.
The alternative writ, following substantially the petition, briefly recited, shows the right of relator to be such, the boundaries of the county, the preliminary steps to the election on the creation of Stevenson county, the submission of such propositions to the voters of the county of McLean at the general election in 1908, the notices of election on said proposition and the election held thereon, and "that the said judges and inspectors of said general election in each and all of the precincts of said county made a statement in duplicate on blanks provided for that purpose, showing therein the number of votes cast for and against the formation of the said new county of Stevenson; and certified the same to be correct, and the same were duly subscribed and filed in the office of the county auditor of said McLean county, with the returns of such general election, according to the statute in such case made and provided; that thereafter, on or about the 16th day of November, A. D. 1908, the canvassing board of said McLean county met pursuant to and as directed to and required by statute, and, after taking the usual oath of office, opened and publicly canvassed the returns theretofore made to the said county auditor of said McLean county of the said general election hereinbefore referred to, and especially the returns of the votes cast by the voters of said McLean county upon the formation of said new county of Stevenson; and that the said canvassing board of said McLean county found that there were 1,006 votes cast 'for new county' and 741 votes cast 'against new county' on the question of the formation of said new county of Stevenson," "by the voters of said McLean county at said general election in said county of McLean; and thereupon the said canvassing board of said McLean county canvassed and abstracted said votes, and so certified the same" "in like manner as the votes are canvassed and the returns made as in the case of the election of members of the legislative assembly of the state of North Dakota."
Then follow averments that the county auditor refuses to certify and make his certificate showing the result of said general election, and the formation and the boundaries and name of said county, and transmit the same to the secretary of state, as required by § 2330, Rev. Codes 1905, as amended by chap. 62 of the Session Laws of North Dakota of 1907; and closes with a command to so certify or make return of the reasons for refusal so to do.
It will be noticed that the foregoing portion of the writ, literally copied, alleges that the official returns by the election boards "in each and all of the precincts of said county" were made to the county auditor, and canvassed and abstracted by the canvassing board of said county, who "found that there were 1,006 votes cast for new county and 741 votes cast against new county;" and that thereupon "the said canvassing board of said McLean county canvassed and abstracted said votes and so certified the same." Bear in mind, then, relator specifically pleads that the election boards in each and all the precincts in McLean county made returns on said county division question, as provided by law, to the county auditor, and said returns were, by the county canvassing board, opened, canvassed, and abstracted. The auditor answers, among other alleged defenses, that out of the fifty-one election precincts in the county of McLean no returns to the county auditor were ever made by the election boards in six of said precincts, designated by name, and that the board of canvassers of McLean county never canvassed the votes on county division cast in said six precincts, and that the aggregate number of electors who voted in said precincts at said election was 354, more than sufficient to have changed the alleged election result had they voted on said question, and said vote had been returned and canvassed and included in the abstracts of votes, as should have been done. That "it was held and determined by said canvassing board that the proposition to form Stevenson county was lost;" "that the county commissioners of McLean county and the county officers thereof all understood and believed in good faith that under the laws of this state the said proposition to create Stevenson county had been defeated;" "all of which was well known to the relator herein and to all other persons in the same situation as relator and interested in the question of the formation of Stevenson county." "That this defendant and many other citizens in said McLean county would have contested said election with respect to the vote on Stevenson county had they known or been informed in proper time that it was asserted or claimed that said vote was, on the face of the returns, sufficient to authorize the formation of Stevenson county; but this defendant and other citizens generally who were adverse to Stevenson county in good faith believed and were led to believe by the silence and nonaction of the supporters of Stevenson county that it was conceded that the Stevenson county proposition was defeated, and therefore did not institute any contest."
Then follow allegations of insufficient notice; dissemination of misleading information acted upon by the voters, causing them to refrain from voting against the proposition, under the belief that a failure to vote was in legal effect a vote against the formation of the county; that 3,600 votes were cast in said county at said general election, at which two other county division propositions were submitted, one carrying by a majority of all votes cast at the election, and thereby creating what is now the organized county of Sheridan that one county division proposition so submitted overlapped, in territory embraced, both of the other two, so that an affirmative vote on all three should not be counted and was in effect a negative vote, and that as to this county of Stevenson, fifty-two such votes are included in the alleged majority therefor; and that, inasmuch as a majority of the affirmative votes for Stevenson county did not exceed one half of all votes cast at the election on all county division propositions then submitted, said county could not be created under § 168 of the Constitution and under the statutes regulative of county division.
Of the many interesting questions thus arising, but one, and that conclusive of results of said election, need be considered. This arises upon the pleadings, and the sufficiency of the proof, and the law applicable thereunder...
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