Tucker v. Board of Co. Commrs.

• Decision Date: 06 November 1903
• Docket Number: Nos. 13,659-(143).,s. 13,659-(143).
• Citation: 90 Minn. 406
• Parties: J. E. TUCKER v. BOARD OF COUNTY COMMISSIONERS OF LINCOLN COUNTY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 406

90 Minn. 406

J. E. TUCKER v. BOARD OF COUNTY COMMISSIONERS OF LINCOLN COUNTY.¹

Nos. 13,659-(143).

Supreme Court of Minnesota.

November 6, 1903.

Appeal by plaintiff, contestant, from a judgment of the district court for Lincoln county, Webber, J., confirming and establishing a change of the county seat of Lincoln county from the village of Lake Benton to the village of Ivanhoe. Reversed and remanded.

Somerville & Olsen, John McKenzie, C. W. Stites, and Warren Miller, for appellant.

John T. Power, County Attorney, Karns & Johnson, John Lind, and A. Ueland, for respondent.

LOVELY, J.

Appeal from a judgment of the district court changing the county seat of Lincoln county from Lake Benton to Ivanhoe.

The petition to the county board for a special election under the county seat removal act (Laws 1889, c. 174, p. 286; G. S. 1894, §§ 647-656), with a sufficient number of signatures and accompanying affidavits of genuineness, was filed with the county auditor, who made an order for a special meeting of the commissioners to take action on the petition. The notice of such meeting was published in the newspapers of the county as required by law. The auditor issued duplicate notices of the time and place of the meeting, as required by law. The duplicates were posted within the proper time in a number of towns and villages of the county, but, under the claim of contestant, proof by affidavit of the posting of duplicates in all the towns was not filed with the county auditor prior to the meeting of the board of county commissioners. Under the view which we have taken of the issues properly tendered by the notice of contest, we regard this as the decisive question on this review.

Premising to a clear understanding of the precise way in which this question becomes important, it may be said that Lincoln county has fifteen townships, as well as the incorporated villages of Lake Benton, Tyler, Ivanhoe, and Hendricks. The village of Lake Benton is within the township of Lake Benton. Ivanhoe is within the township of Royal, and the village of Hendricks is within the township of Hendricks. Tyler is composed of territory within the boundary lines of the towns of Marshfield and Hope. Each of these villages is a legal division of the state, endowed with governmental functions and duties distinct from the town from which it has been separated by incorporation, while each of the towns and villages holds a separate election for all political purposes. The evidence of posting the auditor's duplicate notices of the intended meeting of the county board was an affidavit filed with the auditor before such meeting by the person who performed this duty. It appears therein that within the proper time previous to the date fixed for the meeting a notice was posted in the post office of Hendricks, which was in the village of Hendricks; that a notice was posted in the post office of Willno (afterwards Ivanhoe), in the town of Royal; that a notice was posted upon the posting board in the post office of Tyler; and also that a notice was posted in the post office in the village of Lake Benton. It did not appear otherwise that, in the organized townships within which such villages were located, notices were posted, except in the town of Marshfield, in which a portion of Tyler is located.

These conditions led to the adoption of a finding by the trial judge stating these facts, but after the election an affidavit was filed with the county auditor for the purpose of supplying omissions in the affidavit before referred to. Upon the attention of the court being directed thereto, it struck out the qualifications of its findings showing that postings in the villages were made for the towns included therein, and found that the duplicates were duly posted in each town and village of the county. From the course thus pursued by the district judge, it is manifest that the view was adopted that the affidavit of posting might be filed after the meeting of the board, and that when filed subsequently it was sufficient to establish the facts therein set forth, as well as the conclusion of law that the county seat had been lawfully changed. It follows necessarily that, if a posting of a duplicate notice in any of these villages cannot be treated as a posting in the town within whose territory it was embraced, the result of the contest depends upon the further question whether the county board had the right to order the special election without sufficient proof of the posting being made and filed with the auditor before its meeting.

We have had little difficulty in reaching the conclusion that the requirement to post the notice in "each organized town of the county" is not complied with by posting it only in the included villages. It is a settled rule which has long been in force in this state that in construing the word "town," where it occurs in a statute, it may apply to "cities and districts, unless such construction would be repugnant to the provisions" thereof. G. S. 1894, § 255. We have held that, unless a contrary intention appears, the three classes of primary political divisions — towns, cities, and incorporated villages — either may be expressed by or included in the term "town," when used in a statute. A city or incorporated village constitutes the unit of political organization. "Each incorporated city shall have and exercise within its limits in addition to its other powers the same powers conferred * * * upon towns." G. S. 1878, c. 10, § 112 (G. S. 1894, § 1029). Hence the word "town" is often used as a generic term embracive of all such primary municipal corporations as incorporated cities and villages; and it has become a well-settled rule of construction that the term "town," when used in a general statute, may be applied to or include cities, unless the contrary appears from the whole statute to have been the intent of the legislature. Odegaard v. City of Albert Lea, 33 Minn. 351, 33 N. W. 526.

A good reason for applying this construction to the statute now considered is easily illustrated. Many cities and villages in this state are embraced in the geographical limits of a town, where the latter is a separate entity for election purposes, and where the population of the city or village is often much greater than in the town. The object of the notice of the board's meeting is quite apparent, and it would be absurd to contend that a notice posted in a portion of the town outside of, and perhaps distant from, any portion of the district where the election is to be held, could be regarded as effective for the purposes intended. It might be that a posting of a notice in the town in a matter where voters of a city or village were interested would be misleading, and, to apply the rule we have already adopted, we must hold that the term "organized town," in the removal act, is inclusive of, and, for the purpose of...