State ex rel. Steele v. Fabrick

• Decision Date: 13 October 1908
• Parties: STATE ex rel. STEELE et al. v. FABRICK.
• Court: North Dakota Supreme Court

17 N.D. 532

117 N.W. 860

STATE ex rel.STEELE et al.

v.FABRICK.

Supreme Court of North Dakota.

Oct. 13, 1908.

Syllabus by the Court.

The jurisdiction of the Supreme Court to issue original writs extends to questions affecting the sovereignty, franchises, or prerogatives of the state, or the liberties of the people.

Where the right to be enforced pertains to matters of private or local concern alone, though publici juris, the jurisdiction belongs to the district court, and not to the Supreme Court, unless circumstances of such exceptional character are shown to exist that adequate relief cannot be obtained in the district court.

The sovereignty or franchises of the state are not directly affected by proceedings for the division of a county.

Under section 2329, Rev. Codes 1905, as amended by chapter 60, p. 85, Laws of 1907, the electors of a county have a right to have submitted to them, and to vote upon, all petitions in reference to the division of a county that conform to the statute, although the petition last presented to the county commissioners may conflict, as to the territory to be embraced within the proposed counties, with the petitions first presented and acted upon.

Where a petition is presented for a division of a county, and the county commissioners order the submission of the question of the division of the county, pursuant to the petition, to a vote at the next general election, the county auditor is without authority to refuse to give notice that the question of the division of the county, pursuant to the petition, will be voted on at the next general election, on the alleged ground that the county proposed to be organized, pursuant to the petition, is to contain in part the same territory as the territory to be embraced in another county proposed to be organized pursuant to another petition, which was on file and had been acted on by the commissioners when the petition in this case was presented to the commissioners and acted on.

Application by the state, on the relation of H. H. Steele and others, for a writ of mandamus to J. W. Fabrick. Writ granted.George A. Bangs and F. B. Andrews, for petitioners. George A. McGee and Francis J. Murphy, for respondent.

MORGAN, C. J.

This is an application for a peremptory writ of mandamus. The application is based upon the refusal of the respondent to comply with an order of the board of county commissioners of Ward county, directing him to give notice that the question of the division of Ward county and the formation of Renville county would be submitted to the electors at the November, 1908, election, and to otherwise comply with the order of said board.

The application for the writ is based upon an affidavit which sets forth in detail the facts leading up to the application, and the territory out of which the county of Renville is to be composed is described in detail. Other facts are stated in the affidavit as follows: (1) That the relators are freeholders, taxpayers, and electors of Ward county, and are residents, taxpayers, and qualified electors in the territory sought to be detached from Ward county and organized as Renville county. (2) That on July 31, 1908, a petition was filed in the office of the county auditor of Ward county, and thereafter presented to the commissioners of said county. This petition is set forth in the affidavit, and it states the necessary facts to authorize the county commissioners to submit to a vote of the people the question whether the county of Ward should be divided, and the county of Renville organized and composed of the territory therein described. (3) That the petition was signed by a majority of all the voters residing in the territory to be detached from Ward county out of which the county of Renville is to be formed. (4) That upon the presentation of the petition to the county commissioners the same was granted by them, and an order was made by the commissioners directing that the question of the formation of Renville county be submitted to a vote of the people at the November, 1908, election, and the respondent, as county auditor, was directed to publish due notice that such question was to be submitted to the people as prescribed by law. (5) That the county auditor of Ward county has advised the respondent that the order of the county commissioners directing the submission of the question of the division of Ward county was without authority of law, and that the respondent has often stated that he would not comply with the order of the county commissioners, and would not submit the question to a vote of the people, unless compelled to do so by an order of court. (6) That a demand upon the state's attorney has been made by the relators to prosecute this proceeding, or to permit the use of his name in the proceeding, but the demand has been refused. (7) That the Attorney General of the state has refused to prosecute this proceeding, and has refused to permit his name to be used in the proceeding. (8) The affidavit further states as follows: “That an exigency exists, because of which your petitioners should not be required to make application to the district court for a writ of mandamus herein, in this: That through the exercise of the right of appeal, and the ordinary delays of litigation, a final decision herein cannot be rendered until after the next general election, and justice would be thereby denied; that the matters herein set forth are publici juris.” The relators pray that the respondent be compelled by a writ of mandamus to comply with the order of the county commissioners, directing him to submit the question of the division of Ward county in accordance with said petition of the voters in said territory.

Upon the filing of the affidavit and application for a writ of mandamus, an order was issued by this court, directing the respondent to show cause at Bismarck on September 25, 1908, why the writ should not be issued and he compelled to comply with the order of the county commissioners. On the return day fixed by said order the parties appeared, and the respondent filed his written return to the order to show cause, and objected to the issuance of the writ. Such objections are the following in substance: That the action of the board of county commissioners in submitting the question of the formation of Renville county was null and void, for the reason that, prior to the filing of the petition for the formation of said Renville county, a petition had been filed for the formation of the county of Lake out of the territory now comprised within the county of Ward; that the said last-named petition was in all respects in compliance with the provisions of the statute regulating the division of counties; and that the prayer of the said petition was granted by the county commissioners, and the respondent was by them directed to comply therewith and submit the question of the formation of Lake county to the voters. In the return of the respondent it was further alleged that a large part of the territory to be comprised within the county of Renville as shown by the petition of the voters for the organization thereof, is included in the territory proposed to be organized as Lake county, as shown by the petition filed and acted upon before the petition for the formation of Renville county was presented to said board; and for the reasons alone that the petitions for the organization of the counties of Lake and Renville comprised in part the same territory the respondent did refuse to place the question of the organization of Renville county upon the ballot to be voted upon in 1908. No question is raised by the return, except that the petition in this case conflicts, so far as territory is concerned, with the petition for the creation of Lake county, and that in consequence of such conflict the result may not be decisive on the questions to be voted on.

The respondent raises no question as to the jurisdiction of this court to determine the issue raised by the return under the constitutional provisions granting to it jurisdiction to entertain applications for writs of mandamus. The respondent has expressly stipulated that no objection shall be raised by him to the jurisdiction of this court to determine the issues raised. The stipulation, however, does not and cannot of itself confer jurisdiction, and it is of no effect. In a similar proceeding affecting the location of the county seat in Rolette county (117 N. W. 864) argued and submitted on the same day as this application, the jurisdiction of this court to issue the writ of mandamus was expressly challenged by a motion in writing to quash the order to show cause. The question of the jurisdiction of this court to entertain the application and to issue the writ will therefore be determined, without regard to the stipulation of the parties that they submit to the jurisdiction without objection. The relators in this case have been fully heard on the question of jurisdiction, as they appear in this court by the same counsel who appear for the relators on the application in the Rolette County Case, in which objections to the jurisdiction have been filed, and such objections fully argued by the counsel for the relators in both cases.

In what cases and under what circumstances this court will issue original writs under our constitutional provisions has often been considered and discussed in the prior decisions of this court. It has been so fully and exhaustively considered and treated that no new principle need be invoked for the determination of this application. It is necessary only to apply the facts of this case to the principle so plainly established by the prior decisions, and from such application determine whether the relators are entitled to invoke the original jurisdiction of this court as defined in the Constitution, and fully explained by such prior decisions. In respect to the jurisdiction of this court on applications of this kind,...