State v. Pohl

• Decision Date: 22 January 1943
• Docket Number: No. 33357.,33357.
• Citation: 8 N.W.2d 227,214 Minn. 221
• Parties: STATE ex rel. LAURISCH v. POHL et al.
• Court: Minnesota Supreme Court

8 N.W.2d 227

214 Minn. 221

STATE ex rel. LAURISCH v. POHL et al.

No. 33357.

Supreme Court of Minnesota.

January 22, 1943.

Appeal from District Court, Blue Earth County; A. B. Gislason, Judge.

Mandamus proceeding by the State, on the relation of Frank Laurisch, to compel Clarence F. Pohl and others as individuals and as members of the Board of County Commissioners, Blue Earth County, to redistrict the county. From an order granting the writ of mandamus and from an order sustaining relator's demurrer to the answer, the County Commissioners appeal.

Orders affirmed.

Josiah A. Baker, of Mankato, for respondent.

Milton D. Mason, Co. Atty., of Mankato, for appellants.

YOUNGDAHL, Justice.

Respondent, Frank Laurisch, petitioned the district court of Blue Earth county for a writ of mandamus ordering and requiring the defendants Clarence F. Pohl, Math Sanger, William E. Price, Louis F. Kraus, and William C. Minks, members of the board of county commissioners of Blue Earth county, hereinafter called the "commissioners," to redistrict their county. To the commissioners' answer to the petition, respondent filed his demurrer, which was sustained. The court below then made findings of fact and ordered judgment granting the relief prayed for in the petition and ordering the commissioners to "proceed forthwith" to redistrict their county. From the order granting the writ of mandamus and from the order sustaining respondent's demurrer, the commissioners appeal.

The following facts are undisputed: It appears that respondent is a resident of the town of Danville in the fifth commissioner district of Blue Earth county; that the second commissioner district is wholly composed of the area within the boundaries of the city of Mankato; that the population thereof, according to the last federal census taken in 1940 and on file in the offices of the secretary of state and of the county auditor, is 15,654 persons, or 43 per cent of the total population of 36,203 persons in Blue Earth county; that there is not maintained, either wholly or partly, in the second commissioner district any state penal or corrective institution or state hospital for the insane. Respondent claims that the commissioners should be compelled to redistrict the county pursuant to the provisions of Minn.St.1941, § 375.02, Mason St.1940 Supp., § 651, which, in part, provides: "Counties may be redistricted by the county board after each state or federal census; and when it appears that after a state or federal census 30 per cent or more of the population of any county is contained in one district, exclusive of the inmates of any state penal or corrective institution, or state hospital for the insane, maintained wholly or partly within such district, such county shall be redistricted by its county board." The commissioners admit that the population of the second commissioner district has been more than 30 per cent of the total population of Blue Earth county for some years past, but they have not redistricted their county. They contend that the statute is discretionary.

Appellants have failed separately to state and number their assignments of error, as required by the rules of this court; but, inasmuch as the sole question considered by the court below and discussed in appellants' brief is whether or not the statute here considered is mandatory or directory, and since respondent has not been misled by this irregularity, we deem it sufficient in this case merely to call attention to the importance of strict compliance with the rules of the court.

1. The commissioners contend that the word "shall" as used in the statute is directory rather than mandatory. We cannot agree. There is no universal rule by which directory provisions in a statute may, under all circumstances, be distinguished from those which are mandatory. Consideration must be given to the legislative history, the language of the statute, its subject matter, the importance of its provisions, their relation to the general object intended to be accomplished by the act, and, finally, whether or not there is a public or private right involved. The statute empowering county commissioners to redistrict their counties was first enacted in 1866, G.S.1866, c. VIII, § 85. Until 1917, apart from minor changes in phraseology, the substance remained unchanged and provided, in part, that "The board of commissioners may re-district their counties respectively, after each United States or state census, taking the population as shown by their said census as the basis." (Italics supplied.) In 1917, however, by L. 1917, c. 370, § 1, the statute was amended by adding the following provisions: "and when it appears that after a state or federal census thirty per cent or more of the population of any county is contained in one district, such county shall be re-districted by its county board or if it shall appear from the last census, federal or state, that thirty per cent of the population of any county is contained in one district, such county shall be re-districted by its county board." This provision appears in Minn. St.1941, § 375.02, above quoted, in its present form. Manifestly, the object of the amendment was to provide for proportionate representation in the several commissioner districts in the counties of the state. In construing Minn.Const. art. 4, § 23, which provides for the reapportioning of legislative districts, this court in State ex rel. Meighen v. Weatherill, 125 Minn. 336, 340, 147 N.W. 105, 106, said: "The purpose and object in view is the same, namely, to secure such rearrangement of legislative districts as will extend equal representation to all parts of the state."

The rights of the citizens of Blue Earth county are directly involved, and the legislature, by its amendment, vested in them a right inherently theirs—a right to participate in the affairs of their county on an equal footing. To interpret the statute as urged by appellants would be to render nugatory the 1917 amendment and make it mere surplusage. Prior to the 1917 amendment, the commissioners were vested with discretion in redistricting their respective counties without regard to any percentage of population, except that the law, G.S.1866, c. VIII, § 85, provided that the districts contain "as nearly as practicable, an equal population." If after the amendment it was still discretionary with the commissioners to redistrict their counties without regard to the percentage of population, there would have been no purpose in adding the provision in question. Obviously, such was not the intention. It is clear that the legislature had in mind imposing a positive legal duty upon the commissioners to set in motion the act of redistricting when the population of any one commissioner district reached or exceeded 30 per cent of the population of the county.

The meaning of a similar statutory change is clearly expressed in Champ v. Brown, 197 Minn. 49, 56, 266 N.W. 94, 97, where the court said:

"It is important that we...