106 Minn. 125 | Minn. | 1908
Respondent, on behalf of himself and the taxpayers of Red Lake county, commenced this action for the purpose of enjoining the county auditor from calling a special meeting of the county commissioners to consider a petition for the removal of the county seat from the city of Red Lake Falls to the city of Thief River Falls. A temporary injunction was granted. Appellant, A. P. Toupin, intervened, and in due course of time the action came on for trial, and judgment was entered permanently enjoining the auditor from taking any action on the petition, from which judgment the intervener appealed.
On April 11, 1905, a petition signed by two thousand six legal voters of the county, in due form, praying for the removal of the county seat from Red Lake Falls, was presented to the county auditor and filed in his office. All of the statutory requirements with reference to the circulation and filing of the petition were complied with. The complaint states: “That on or about the 25th day of March, 1907, the said petition was by some person or persons to plaintiff unknown removed from the office of the county auditor of Red Lake county, without the knowledge or consent of said county auditor, and the whereabouts of said petition ever since said date has been and still is unknown to said county auditor, and that the same is not now on file in the office of said county auditor, nor in his custody nor under his control.” The board of county commissioners had never acted upon or considered the petition, and had not determined the genuineness of the signatures thereto.
It is further stated that, after the removal of the petition from the office of the county auditor, the persons who caused the same to be
The intervener states in his complaint in intervention that the auditor neglected to call any special meeting of the commissioners to consider the first petition, but purposes to take steps under the statute to call the' commissioners together to consider the second petition, and demands that the auditor be enjoined from taking any steps to give the statutory notice for the consideration of the second petition upon the ground that the first petition has not been withdrawn or abandoned, and that it is the duty of the county commissioners to proceed thereunder.
The plaintiff answered the intervening complaint and specifically denied that the petition filed April 11, 1905, was a part of the records and files of the auditor’s office, alleged that the petition had been abandoned, and that by some person unknown to him, and without his knowledge or consent, had been removed from his office, and that its existence and whereabouts were to him unknown, that the commissioners had attempted to act upon and consider the same, but that it was determined in the case of Kaufer v. Ford, (100 Minn. 49, 110 N.
As we understand it, the plaintiff commenced this action for the purpose of securing a judicial determination that the first petition was not a bar, and to clear the way for proceedings under the second petition. The intervener asserts that the evidence is not sufficient to warrant the court in finding that the first petition was void and that the proceedings had been abandoned, and that the court has no jurisdiction to interfere with the proposed action of the county auditor in calling the county commissioners together to act upon the first petition.
The legislature has deemed it expedient to require the county commissioners to determine whether the signatures to such petition are genuine, and whether the petition contains the requisite percentage of legal voters. Section 398, R. L,. 1905. In order to perform that duty, it is absolutely necessary that the commissioners have before them the petition itself. They cannot pass upon the validity of the signatures unless the originals are before them, and it necessarily follows that, if the petition has been destroyed or cannot be produced at the meeting called for its consideration, then there is nothing before the commissioners upon which to base their action. That body could not at the same time have jurisdiction with respect to two petitions, and could not acquire jurisdiction to proceed under a second one during the pendency of the first. It follows that the mere filing of the second petition did not deprive the commissioners of jurisdiction as to the first unless it had been lost, or the proceedings had been withdrawn and abandoned. Judgment was entered enjoining the county auditor from taking any proceedings to call the commissioners together for the purpose of considering the first petition, and was based upon the finding of fact that the petition had been withdrawn from the office of the county auditor and could not be found, and that the proceedings thereunder had been abandoned.
After the filing of such a petition, and before consideration thereof by the commissioners, no signer has authority to withdraw his name from it, and neither the signers of the petition nor the promoters of the plan to move the county seat have authority to withdraw the petition and abandon the proceedings. State v. Geib, 66 Minn. 266, 68 N. W. 1081; Slingerland v. Norton, 59 Minn. 351, 61 N. W. 322. After
In view of the delay in submitting the proposition on the merits to the voters of the county, and at the suggestion of both parties to this appeal, we take this occasion to express our opinion that if the commissioners shall determine, at a regularly called meeting for that purpose, that the first petition has been lost or destroyed, then they may assume jurisdiction with respect to the second petition.
Reversed.