State v. Honerud (In re Section No. 6, Township One Hundred & Thirty-Four)

• Decision Date: 18 September 1896
• Citation: 66 Minn. 32,68 N.W. 323
• Parties: IN RE SECTION NO. SIX, TOWNSHIP ONE HUNDRED AND THIRTY-FOUR. STATE v HONERUD.
• Court: Minnesota Supreme Court

66 Minn. 32

68 N.W. 323

IN RE SECTION NO. SIX, TOWNSHIP ONE HUNDRED AND THIRTY-FOUR.STATEvHONERUD.

Supreme Court of Minnesota.

Sept. 18, 1896.

(Syllabus by the Court.)

Chapter 87, Laws 1872, entitled “An act to change the county lines of Otter Tail county,” is constitutional; and townships 131 to 136, both inclusive, of range 44 W., are legally a part of the corporate territory of such county.

Case certified from district court, Otter Tail county; L. L. Baxter and D. B. Searle, Judges.

In the matter of the application for a tax judgment in section No. 6, township 134. Judgment for taxes, and case certified to the supreme court, on the application of Lars O. Honerud. Affirmed.

M. J. Daly and Houpt & Baxter, for plaintiff.

Lyman B. Everdell, Robert J. Wells, and Henry G. Wyvell, for defendant.

START, C. J.

In the list of delinquent taxes in and for the county of Otter Tail for the year 1893, which was duly filed in the office of the clerk of the district court of that county, there was included certain land in section 6, township 134 N., of range 44 W. The owner thereof, the defendant herein, appeared, and, for answer to the application for judgment against his land for such taxes, denied the jurisdiction of the court on the ground that the land was not within the territorial limits of the county of Otter Tail, but was a part of Wilkin county. The district court found that the land was a part of Otter Tail county, and ordered judgment for the taxes, and, on the application of the defendant, certified the matter to this court.

1. Townships 131 to 136, both inclusive, of range 44 W., were by the provisions of chapter 87, Laws 1872, detached from Wilkin county, and made a part of the county of Otter Tail. The defendant's contention is that this law is unconstitutional, because it was never submitted to the electors of Wilkin county for adoption, as required by section 1 of article 11 of the constitution. His claim is that Wilkin county was at that time an organized county, and his land legally a part of its territory. It seems to be conceded by counsel on both sides that the question whether the defendant's land is de jure a part of the territory of Otter Tail county can be raised by him in this proceeding by the state to enforce a tax against his land. This is a matter of first importance to the public, and we are unwilling by our silence to indirectly assent to the proposition that the question can be so raised. It would seem that where, as in the case at bar, territory, by virtue of an act of the legislature, has become de facto a part of a particular county, which has exercised jurisdiction over it for years, and the state has continuously recognized the territory as a part of such county, a citizen or taxpayer residing or owning property within the limits of such territory, when called upon to pay taxes, serve as a juror, or to discharge any other public duty or burden, ought not to be allowed to question the legality of the incorporation of the county, or the integrity of its publicly recognized corporate boundaries, by asserting the unconstitutionality of the legislative act. Considerations of sound public policy forbid it, and suggest that the question ought to be considered as a public one, to be raised only by the state itself by quo warranto or other direct proceeding. To permit private individuals to raise the question in collateral proceedings would manifestly result in serious consequences to public and private interests. It is settled, upon principle and authority, that where a municipal corporation is acting under color of law, and its corporate existence is not questioned by the state, it cannot be collaterally drawn in question by private parties. The legal validity of a de facto municipal corporation will not be inquired into in a tax case. 1 Dill. Mun. Corp. § 43; Cooley, Const. Lim. (16th Ed.) 309, 310; Cooley, Tax'n, 768; People v. Maynard, 15 Mich. 463;Coe v. Gregory, 53 Mich. 19, 18 N. W. 541;Town of Geneva v. Cole, 61 Ill. 397;Rumsey v. People, 19 N. Y. 42. Why, then, in this case, should the defendant be permitted to draw in question the legality of the de facto corporate boundaries of Otter Tail county, after they have been recognized and acquiesced in by all of the departments of the state government for nearly a quarter of a century? As at present advised, we have little or no doubt as to the answer which ought to be given to this question; but in view of the public importance of this case, and the fact that we permitted counsel to argue and submit it on the merits, we deem it advisable to place our decision of the case upon the merits, and leave the question we have here suggested open for further consideration, should it ever arise.

2. The question of the constitutionality of the act of 1872, whereby township 134 of range 44 (of which the defendant's land is a part), with other towns, was detached from Wilkin, and made a part of Otter Tail county, hinges on the further question whether Wilkin was at that time an organized county, within the meaning of the constitution. A solution of this last question involves a consideration of the previous legislation relating to Wilkin and adjoining counties, the undisputed evidence, and findings of the trial court in this case as to the nonexistence in fact of any form of county government in such counties at the time such legislation was enacted.

On March 18, 1858, an act of the legislature entitled “An act to establish the boundaries of certain counties and provide for their organization,” was approved. Laws 1858, c. 34. This law established and authorized the organization of the counties of Otter Tail, Breckenridge, and Becker, and fixed the boundaries of each. On the same day an act entitled “An act to establish the county of Toombs” was also approved. Sp. Laws 1858, c. 64. This law fixed the boundaries of the county, and provided for the appointment of county commissioners for the county, with power to appoint all other county officers. By these acts the counties of Breckenridge and Toombs became organized counties, so far as the legislature could organize them. Thomas v. Hanson, 59 Minn. 274, 61 N. W. 135. The defendant's land was included within the boundaries of the county of Breckenridge, as established by chapter 34, Laws 1858. Chapter 33, Sp. Laws 1860, approved March 10, 1860, provided for a change in the boundaries of the counties of Toombs, Breckenridge, Otter Tail, and Becker, whereby the defendant's land would fall within the new boundaries of Toombs county. The act, however, expressly provided that it should take effect on and after its adoption by a majority of the electors of the several counties. It is recited and affirmed in chapter 32, Sp. Laws 1862, that the act of March 10, 1860, was adopted by the electors in the manner required; but the trial court found-and the finding is sustained by the evidence-that no election was ever held under this act. Such being the fact, this act never became a law; and the land in question remained a part of Breckenridge county certainly until March 8, 1862, if not for a longer time. On the 6th day of March, 1862, the name of Breckenridge county was changed to Clay. Sp. Laws 1862, c. 33. March 3, 1862, the legislature passed an act (senate file No. 47) changing the name of Toombs county to Andy Johnson; but the bill was lost before it reached the governor, and was never approved. See Senate Journal 1862, and Sp. Laws 1863, c. 13. The legislature, evidently assuming that senate file No. 47 had become a law, passed an act, approved March 8, 1862, entitled “An act to define the boundaries of the counties of Clay and Andy Johnson.” Sp. Laws 1862, c. 25. This act purports to change the boundaries of the two counties so as to exclude the defendant's land from the territory of Clay, and include it within the limits of Andy Johnson, county. On March 6,1863, by an act approved on that day, the name of Toombs county was changed to Andy Johnson, and by the second section thereof its boundaries, as fixed by the act of 1862, re-enacted. Sp. Laws 1863, c. 13. Neither this last act, nor the act of 1862, was submitted to the electors of either of the counties for adoption; but both acts, by their terms, were made to take effect on and after their passage. Assuming that these counties, or either of them, at the time of the passage of the acts referred to, were in fact organized, it would seem that both acts were unconstitutional, and the disputed territory remained a part of Clay county. However this may be, the question is here immaterial, in view of subsequent events and legislation. In 1868 the name of Andy Johnson county was changed to Wilkin. Laws 1868, c. 115. We shall therefore, as we proceed, refer to Breckenridge county as Clay, and Toombs as Wilkin, county.

As a result of the Indian massacre of 1862, each of these counties was entirely depopulated, and every vestige of a county organization or government in fact was extinguished. It appears from the undisputed evidence that the commandant of Ft. Abercrombie issued an order that all of the inhabitants of the two counties should be brought into the fort, whether they were willing to...