*1 OTHERS. AND ERNEST WHIPPLE MARINE v. LAURENCE (2d) 657. 1960 No. Popovich Rogers, Peterson, & Edward L. County Attorney, Marsden, for relators. Special County Attorneys, Simonett,
Gordon Rosenmeier and John respondent. E.
Dell, Chief Justice. *2 commanding
A writ this court the prohibition was issued out of District Murphy, Court of Cass and the Honorable James F. County thereof, judge its order show enforcing hearing to refrain from to cause dated December the relators to 1, 1959. That order required show cause an why before the district court December on order should not be a a directing hearing made the relators to hold on petition for the creation of an district. school independent
The petition for the creation of an district was filed independent August on Subd. 4 of that pursuant to Minn. St. 122.11. section states in part:
“The petition shall be filed with the auditor who shall county present it to the board at county meeting. meeting, its next At the the county board shall fix a hearing time and the which time place for petition, shall be not more than 60 less days days and not than ten from date meeting. of the The аuditor shall cause week’s no- published one tice hearing of the given to be in the and ten county, days’ posted no- tice in the described in the territory petition.” 5
Subd. section reads as thаt follows: “Within six months of the date filing of the of the petition, county board shall issue its order granting either If denying petition. the petition is granted, the order shall describe the district. particularly The сounty may board boundaries in the proposed petition by enlarging decreasing If the granted, petition area. commissioner auditor shall transmit a certified copy of the ordеr to the assign who shall an identification number the district and notify to auditor days thereof within ten after his the certified receipt copy of the order.”
It appears from the and exhibits file that at the affidavits on herein meeting of the Board of County County Commissioners of Cass on date on the setting hearing peti- action for
September following minutes of the meeting. next The tion until the postponed was three to 6, 1959, indicate the board voted October meeting on creating set a date for on against a motion to two the board stated The three members of an school district. independent attorney gen- from the opinion basis decision was an that the of their any part taken the board if eral’s that no action could be officе for consolidation area proposed included an is in District Court area for consolidation proposed “furthermore such to act while such feeling jurisdiction and a board has no area proposed area for consolidation is of the part District.” Independent formation of a new and School same property The consolidatiоn referred included the proceeding from an order served was before this court on appeal executing from enjoining the of schools county superintendent the order in Williаms effectuating the consolidation. reversed We Rolfe, (2d) and denied the petition for reargument on March a writ prohi
Three elements are essential the issuance of *3 bition:
“* * * (1) officer, court, is about to exercise That the or pеrson judicial (2) that exercise such is power; power quasi-judicial law; (3) unauthorized which and that it will result in for by injury there is no other remedy.”1 adequate agree
We with the the last two elements rеspondent neither of are here. present
The proceedings sought are what would prohibited essentially to be have in the to prior been nature of an alternative writ of mаndamus 81.01(2) Rule of Rules the rule abolishes Although of Civil Procedure. writ, it that “The relief heretofore available specifically provides be obtained action motion thereby may by appropriate appropriate under the practice pro- in these rules.” It follows prescribed Enersen,
1state ex rel. United Elec. & M. Workers 230 Minn. R. (2d) 25, 31; see, Young, also, N. W. State ex rel. 29 Minn. Hahn v. 738. district be by show causе issued court should priety of the to rules of writs of governed availability the established relative to mandamus.
The writ mandamus was issued to board to properly compel which the law but not duty сlearly imposed, performance public to interfere exercise discretion officers.2 If the by public with the contend, action here involved is an as relators attempt, control board, is discretion of the then it that the court appear would threatening to act in excess of its jurisdiction. 122.11,
While the language of 4 and is on mandatory subds. § face, nevertheless, its the provisions may, be deemed if directory they are designed order, merely to secure uniformity, dispatch public business.3 be that the time Consequently, may limits within which hearing must be set and the order issued are only directory. How- ever, the that the requirement board fix a time and place for the petition is not only its face but mandatory goes on to the very essence of the thing tо be done and if not intended obeyed to be would serve no useful purpose.4 will, Since the action of the district at court most, that the require only board set a date for the hearing, which may be during any period of time feasible, shown to be the most no interference with the discretion of the county board contemplated.
Relators argue that action relating bе taken petition cannot during the pendency proceedings consolidation because of the pro 5; visions 122.23, St. subd.
“Upon receipt of a plat and statement, the suppоrting each auditor shall immediately notify his respective county After such board. notifi- cation, during the pendency of proceedings under the plat statement supporting or for a рeriod shorter, of six months, whichever is no action bemay taken by the county board under any other law to district if any part of the included in an area consolidation.” 586.01; St. 2Minn. Minneapolis-HоneywellRegulator Nadasdy, Co. v. *4 159, (2d)
247 Minn. 76 N. W. 670. 3Bielke Sugar 308, v. American Crystal Co. 206 Minn. 288 N. 584. W. 4See, Pohl, State ex Laurisch 221, 227; rel. v. (2d) 214 8 N. W. Minn. Sutherland, 3 (3 ed.) Statutory Construction § 5808.
22 district independent for whether an application It is questiоnable district” within the an action “to constitutes the statute Assuming that action. meaning above-quoted ex- time limitation has that the 6-month it appear would apply, does law properly are those substantive event, these issues In any pired. of the power acts which exceed district court. While before showing by juris- proper prohibition,5 be restrained may upon cоurt limited because merely defeated nor lower court is not diction of the decision.6 make an erroneous may Moreover, circumstances before us under the grant prohibitiоn scheme of statutory appel circumvent would, only in our opinion, is remedy appeal adequate, the normal Presumably late review. sought is the order where, here, as direct from appeal particularly showing their burden of have not sustained Relators available.7 be the reasons compelling may remedy. of this However inadequacy involved, go do they deferring action on not issuing writ of district court nor the jurisdiction propriety of the be and should properly matters the merits These affect prohibition. to>it. It not the district court if by presеnted taken into consideration ruling. an erroneous anticipate prohibit of this court to function discharged. Writ Gallagher, (dissenting).
FrankT. Justice court, determining this in It me that the sole issue beforе appears to cause as to show issue an order jurisdiction of the court to (2d) Court, 462, N. W. v. 253 Minn. 93 5State ex rel. District Sheehan 573; denied, 909, 585, (2d) State Ct. 3 L. certiorari 359 U. S. 79 S. ed. (2d) Wilson, 570, 48 N. W. 513. rel. v. 234 Minn. ex Stenstrom (2d) Court, Minn. 25 N. W. Flodin District 222 6State ex rel. v. 493; 692; (2d) rel. State ex Kirby, 222 24 N. Heinsch Minn. W. v. 343; Johnson, (2d) see, Bellows Laurisch v. 216 12 N. W. Minn. Ericson, (2d) 658. 233 Minn. Funck, to the 684. As Minn. N. W.
7State ex rel. Beede v. no other there is various factors to be considered in whether determining Mаxwell, Riesenfeld, Bauman, Judicial legal adequate remedy, see Extraordinary Remedies Action Control Administrative Means Minnesota, granting a seq. et 36 Minn. Rev. An L. 605.09(2). mandatory injunction appeаlable under St. *5 issued the Board compelling County an order should not be of why hearing, to set a date for is whether the law clearly Commissioners a public duty the Board of Commissioners imposеs upon County hearing. set a date for a 1959, takes Sess. L. c.
Plaintiff-respondent Ex. position 71, 3, art. in that the must mandatory subd. board set § a time for than date the meet- days not more from the that, ing, under subd. it must grаnting issue or deny- ing filed, within 6 months after the date was
The defendants-relators contend that the foregoing mandatory is not but merely directory within the discretion the county board. refer us to Ex. They Sess. L. c. art. 7, subd. previously § codified as 122.018, Minn. St. subd. which states: “Upon receipt plat statement, and the each supporting auditor shall his immediately notify respective county board. After such noti- fication, and during the pendency proceedings under plat months, statement supporting shorter, for a six period whichever is no action may be taken county board under other any law to modify the any if of the district is in- part cluded in an area consolidation.”
It my opinion where are commenced proceedings for the consolidation of of a part school district under Minn. St. 122.23 no other proceedings involving the same or part territory same should be considered until has there been disposition of first proceeding.
Knutson, Justice (dissenting).
I concur in the dissent of Justice Frank Gallagher. Mr. T.