State ex rel. Ulander v. Cnty. Comm'rs of Burke

• Decision Date: 31 October 1922
• Citation: 49 N.D. 151,190 N.W. 549
• Parties: STATE ex rel. ULANDER et al. v. COUNTY COMMISSIONERS OF BURKE AND RENVILLE COUNTIES et al.
• Court: North Dakota Supreme Court

49 N.D. 151

190 N.W. 549

STATE ex rel.ULANDER et al.

v.COUNTY COMMISSIONERS OF BURKE AND RENVILLE COUNTIES et al.

Supreme Court of North Dakota.

Oct. 31, 1922.

Syllabus by the Court.

In three separate applications for original writs of mandamus to compel county commissioners to meet and county commissioners and county auditors to submit to the voters, pursuant to three separate petitions, respectively, presented to them, the questions of forming a proposed Lake county out of Burke county, 18 townships in Renville county, and 7 townships in Ward county; and, also, the question of withdrawing 6 townships from Renville county, which now contains only 24 townships, and adding the same to Ward county, it is held:

That each petition must be considered by itself, and that there is no presumption that the subscribers to one petition consented to the request contained in another.

That the petition requesting the withdrawal of 6 townships from Renville county, which contains only 24 townships, violates the constitutional requirement (section 167, Const.), and mandamus will not issue to compel an idle act.

That the petition requesting the withdrawal of 18 townships in Renville county composed of 24 townships, and the incorporation of the same in the proposed Lake county, likewise, violates the constitutional requirement.

That the submission to the voters in Burke county of the question of forming the proposed Lake county would be an idle act for which the writ of mandamus will not issue.

That it is doubtful whether section 3205, Comp. Laws 1913, and article 3, of which it forms a part, apply to the merger and destruction of existing counties and the creation of a new county composed of the territory in whole or in part of such counties to be destroyed.

Three separate applications for writs of mandamus by the State of North Dakota, on the relation of one Ulander and others, against the County Commissioners and County Auditors of Burke and Renville Counties. On orders to show cause why writs should not issue. Orders to show cause dismissed.

George A. Bangs, of Grand Forks, for petitioners.

Fisk, Murphy & Nash, of Minot, for respondents of Burke County.

Bosard & Twiford, of Minot, and Percy S. Crewe, State's Atty., of Mohall, for respondents of Renville County.

PER CURIAM.

Petitioners have presented three applications for the issuance of original writs of mandamus. This court granted three orders to show cause thereupon; respondents have appeared, and through demurrers, motions to quash, and returns filed against the petitions seek dismissal of the orders.

The first petition alleges that, on September 6, 1922, a petition was presented to the county commissioners of Renville county, requesting that the question of detaching 6 townships from the county and transferring same to Ward county be submitted to the voters at the general election on November 7, 1922; that, on September 6, 1922, there was presented also a petition to such county commissioners for the formation of a new county to be called Lake county, consisting of Burke county, and Renville county (minus the 6 townships mentioned) and 7 townships in Ward county, to be submitted to the voters at said election; that, on October 3, 1922, the board granted such petition, but on October 4, 1922, rescinded this previous action upon the ground that the board was without authority at law, for the reason that the transfer of such townships would reduce the county of Renville to less than the constitutional limit.

The second petition alleges that, on September 6, 1922, a petition was presented to the county commissioners of Renville county, requesting the formation of a new county, to be named Lake county, consisting of 7 townships in Ward county, and all of the counties of Burke and Renville excepting the 6 townships above mentioned, and demanding the submission of the question to the voters at the general election on November 7, 1922; that on October 3, 1922, the commissioners granted said petition, but on October 4, 1922, rescinded its action upon the ground that such petition is not provided for by law, and that its action in granting such petition was void.

The third petition...