59 Minn. 351 | Minn. | 1894
The questions raised by this appeal involve the construction of several of the provisions of Laws 1889,.ch. 174, relating to the removal of county seats.
A petition for the removal of the county seat of Dodge county from Mantorville to Dodge Center, in the form prescribed by statute, was presented to the county auditor; and immediately thereafter, and before the petition was filed, one hundred and ninety four (194) of the signers presented to the auditor, in writing, duly-authenticated withdrawals of their signatures, and requests to him to strike their several names from the petition. This the auditor refused to do, and was about to make an order for a special meeting of the board of county commissioners to act upon the petition. Thereupon, the plaintiff, an elector and taxpayer, brought this action to enjoin the auditor from making the order or taking any further steps in the matter, on the ground that after the withdrawal of the one hundred and ninety four names the petition did not contain the required number of signatures. A temporary injunction was issued, which the court subsequently dissolved. From this order, plaintiff appeals.
1. It is urged by the defendant that the plaintiff has an adequate remedy at law, and therefore an injunction will not lie. The point is not well taken. Assuming that plaintiff has a remedy as respects the matter complained of, injunction is the only one. The matter could not be reviewed either pn certiorari or by contesting the election. Sinclair v. Commissioners of Winona Co., 23 Minn. 404; Currie v. Paulson, 43 Minn. 411, (45 N. W. 854.)
2. The next question is, how shall the whole number voting at the last general election, as shown by the returns of such election, be ascertained? Clearly, it must be from the poll lists, as distinguished from the official count, which only shows the number of votes cast for a particular office, for the poll lists alone show the
3. We are also of opinion that women voting at the election should not be included in the computation. They are voters only for the purpose of electing school officers, and hence are electors only in a limited or qualified sense. They have no right to vote on the question of the removal of a county seat. As suggested by the learned trial court, if they are to be included in the computation a case might arise where the petition would not have the requisite number of signatures, although signed by every elector entitled to. vote on the question of removal.
4. We are also of opinion that the word “majority,” in the second clause of section 1 of the act, must be read in connection with the provision in the first clause that the petition must be signed by “not less than sixty per cent, of the whole number voting,” etc. It must be construed as meaning, not a mere majority, but the majority required by the first clause, to wit, sixty per cent. This is. not an accurate use of language, but it is clearly what the legislature meant.
5. It follows from these conclusions, and the undisputed facts in this case, that, if the names of the one hundred and ninety four who assumed to withdraw their signatures from the petition should be omitted from the computation, then the petition no longer contained the required number of signers. This brings us to the principal and only serious question in the case, viz.: What was the-status of those one hundred and ninety four names? Had these-persons the right to withdraw after the presentation of the petition to the auditor, and what were the powers and duties of the auditor-in the matter?
We have no doubt of the right of any of the signers to withdraw his name from the petition at any time before the board of county-commissioners has completed its inquiry and determination in the-matter of purging the petition committed 'to it by the statute.. This right is an absolute one, which the petitioner may exercise on his own motion, without assigning any reason therefor, or obtaining leave to do so from any one. This right is generally recog
On the other hand, plaintiff contends that the fallacy in the argument is in assuming that the board is the tribunal designated by law to determine matters of withdrawals. He contends: That the board luis no more power or discretion in the matter than the auditor has. That the only power conferred upon it by the statute is to determine —First, which of the signatures are not genuine; Second, whom of the signers were not legal voters; Third, which of the signatures were not attached within sixty days preceding the filing of the petition. That a signature is removed or withdrawn from the petition by the mere act. of the party, and, when once withdrawn, stands as if never attached. And that whenever, by reason of such withdrawals, the petition, whether still with the auditor, or before the board, ceases to have the requisite number of subscribers, and all further proceedings' are without authority of law and void. We concede the force of this reasoning, and we admit the correctness of most of the legal propositions upon which it rests. We may also admit that the reasons for refusing to accept the conclusion that withdrawals after
Moreover, petitioners have the same power to recall their withdrawals that they have to withdraw their signatures; and, in view of the facility with which some men are induced to do such things, the existence of such a state of things is not improbable. This “place for repentance” remains open to them until the board of county commissioners have finally completed their action on the petition, so that, in one sense, the sufficiency of the number of signatures cannot be said to be finally and conclusively determined until that time arrives.
For these and other reasons which might be suggested, we have come to the conclusion that the statute does not contemplate that a petition, when once presented to the county auditor; may be arrested on its way to the board of county commissioners by the subsequent withdrawal of signatures; that the only power or duty conferred or imposed on the auditor is to ascertain whether the petition, as presented, conforms on its face to the requirements of the statute, and contains the required number of signers, which is to be ascertained by a comparison of the number of signatures with the number of electors on the poll lists; and that if it does it is mandatory on him to take steps necessary to bring it before the county commissioners.
There might seem to be a practical difficulty growing out of the fact that the statute makes no provision as to the manner of exercising the right of withdrawal. But, when it is remembered that a withdrawal is the mere act of the person himself, there is no serious difficulty. At any time before the right of withdrawal has expired, any signer has the undoubted right to demand of the board to have his name stricken off or withdrawn. He may authorize another to do it for him. If he should request the county commissioners to do so, they would have the undoubted right to strike his name off the petition, not by virtue of their office, but by virtue of their authority from him.
Order affirmed.
On Petition for Beargument.
(Dec. 17, 1894.)
The sole ground upon which a reargument is asked is that the court erred in holding that a party who has withdrawn from a petition for the removal of a county seat has the right to recall that withdrawal at any time until the petition has been finally acted upon by the board of county commissioners. This was said merely by way of argument, and is therefore merely obiter. It was not necessary to the decision of the case, and involves a question which was not discussed by counsel. What was said on the subject is withdrawn, so that if the question arises hereafter it will be considered res integra.
Application denied.
(Opinion published 61 NT. W. 322.)
