State ex rel. Streissguth v. Geib
| Decision Date | 20 November 1896 |
| Docket Number | 10,144--(62) |
| Citation | 68 N.W. 1081,66 Minn. 266 |
| Parties | STATE OF MINNESOTA ex rel. THEODORE STREISSGUTH v. JOHN GEIB and Others |
| Court | Minnesota Supreme Court |
Appeal by defendants from a judgment of the district court for Sibley county, entered in pursuance of the findings and order of Severance and Cadwell, JJ. Affirmed.
Judgment affirmed.
Ed. H Huebner, for appellants.
McClelland & Tifft, John Lind, and P. A. Cosgrove, for respondent.
This is an appeal by the defendants from the judgment of the district court of the county of Sibley adjudging that a peremptory writ of mandamus issue, directing the defendants as the board of county commissioners of such county, to reconvene and annul their previous action in directing the striking from a petition, for the removal of the county seat from the city of Henderson to the village of Arlington, the names of 144 petitioners, and restore such names to the petition, and take action thereon as provided by statute. On the trial of this case, it was stipulated that the allegations of fact in the alternative writ as amended were true, and the judgment of the court was based on such facts which, so far as here material, are these:
On December 31, 1895, the petition for the removal of the county seat was filed in the office of the county auditor. Thereafter 144 of the electors who had signed the petition severally executed an instrument, which was both a power of attorney and a withdrawal, in which the signer declared that he thereby withdrew his name from the petition, and authorized his attorney in fact, named and appointed therein, to strike his name from the petition, and instructed him to do so and to demand from the person or officer having the petition the opportunity to strike his name therefrom. We shall, for the sake of brevity, hereinafter refer to such instruments as the "withdrawals." After the execution of the withdrawals and delivery thereof to the persons named therein as the attorneys in fact of the signers, and before the board of county commissioners had convened to act on the petition, each of the withdrawals was exhibited by such attorney in fact to the county auditor, in whose official possession the petition then was, and demand was made upon him for the right and opportunity to strike the name of the person executing the withdrawal from the petition, which was refused.
After such presentation of the withdrawals to the auditor, but before any of the names of the signers thereof had been in fact stricken from the petition, and before any action had thereon by the board of county commissioners, each of the 144 persons executing the withdrawals executed and delivered to the relator and other proponents of the petition an instrument, duly witnessed and acknowledged (which will be hereinafter referred to as a "revocation"), wherein he declared that he revoked and recalled his withdrawal, and demanded that his name remain on the petition and that he be counted as one of the petitioners. He further expressly stated therein that any power of attorney or authority previously given by him to remove his name from the petition was thereby revoked, and all persons forbidden to remove or erase his name from the petition.
Afterwards while the board of county commissioners was in session and proceeding with the consideration of the petition, the respective attorneys named in the withdrawals presented each of them to the board, and demanded the right and opportunity to strike from the petition the name of the person who had executed the withdrawal in each case, to which the relator then objected, and he immediately and publicly announced and presented to the board the revocation of the withdrawal in each case presented by such attorneys; but the board refused to recognize or receive the revocations, and the names of the persons so executing such withdrawals, respectively, were, by permission and authority of the board, stricken from the petition, by drawing a line through the signature of each of such pe...
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