Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-08-07
SUPREME COURT.
FULL TEXT OF DECISION FILED

OOl1GIHU OJJnls
FULL TEXT OF DECISION FILED.
The State Of Minnesota, on the relation Of s. p.
Li'ad1ol'n, appellant, as. a. j. Parker, Res
pofdent; the State Of Minnesota, on the relation
cfJo6 e. Hart, appellant, Us. Frank A. Par
ker, Respondent.
OPINION.
Ihese two cases are in the nature of quo
Warranto, one to determine the right of A. J.
Parker to hold and exercise tie office of county
auditor of the county of Big Stone. the other to
determine the right of f. A. Parker to hold and
exercise the duties of the office of clerk of the
district court in the same county.
The general question presented is whether
the county OF Big Stone is an organized county,
and entitled to have county auditor and clerk
OF the district court. The respondents make
the preliminary objection that the action will
not lie for the reason that before an action will
lie against any man for usurping public office
there must be such public office as he is
| charged with usurping, and if Big Stone is not
| an organized county there cannot legally be
any such office in 1t as county auditor. There
IS much Logical force in the objection and the
weight OF authority at common law undoubt-
| edly Is, that the writ of quo warranto will not
1 issue to GUST a from an office unless the
Office has a legal existence.
| we think, however, that the action author
| lied by the statute has in this respect more
enlarged scope than the writ of quo warranto
at common law. The statute authorizes the
attorney general to bring an action in the name
| OF the State. when any person usurps, in
| trudes into, or unlawfuAy holds Oh exercises
any public Office or any franchise within this
State, or any office of any corporation created
! by authority of this State, Sec. 8, chap. 70,
| General Statutes.
This provision was taken .er5otina
from the New York Code. In the Peo-
pie VS.. Draper Is, New York 532
the court of appeals sustained an action to de-,
termlne the right of defendants to the Office of
police commissioners when the only question
involved was, whether the office had any legal
existence; and in the People vs. Carpenter, "a
New York, Sc, which was an action to test the
defendants right to exercise the duties and
powers of supervisor Of town, and the only
question wac, whether the town had been le-
gally created. Whether the action was an APP
proprlate one to raise that question was fully
considered by the court of appeals, and the
action sustained the court saying: 1.-THE object
OF the trainers of the code in the provisions in
reference to these actions manifestly was, to
provide speedy and effectual mode of deter
mining the claim of persons to exercise the du-
ties OF any office within this State, and the de-
termination of the claims of individuals to dis
charge the duties of any office would necessari-
| ly involve the determination of the existence
of the particular Office If n person
should assume to set up and exercise an office
not known to the law at all, in which case his
acts would not have any semblance of legal
effect, the case might be different. But we
have very little doubt upon the statute that
where a man assumes to hold and exercise the
duties of an office known to the law, and the
duties and powers OF which are defined by law
the action will lie to test the question whether
| the Office is authorized within the particular
district for which he assumes to hold and exer-
else 1T. The offices of county auditor and clerk
of the district court are offices established and
! the powers and duties of which are defined by
law, and we think that one who assumes to ex-
erclse either within county where such
Office is not authorized may be proceeded
against under the statute.
The constitution, art IL, recognizes a dis
function between organized counties and estab-
lished counties. The statutes both before and
since the constitution recognize a distinc-
ton. For instance, revised statutes of 1851,
chapter one, divide the territory into nine
counties. Of these three are declared to be or
gained counties invested with all and singular,
the rights, privileges and immunities to which
all original counties in this Territory shall be
and are by law entitled" One is declared to
are declared organized only for the appoint
ment OF justices of the peace, constables and
such other judicial and ministerial Offices as
may be specially provided for. All through
the acts of the legislature the usual formula,
in declaring an established county is $50 much
of the Territory Tor State) as is embraced in
the following boundaries be- and the same is
hereby established as the county off, and in
declaring an organized county, THAT the
county of ----- be, and the same is hereby
declared to be organized with all and singular,
the rights, privileges and immunities to which
all organized counties in this Terri
tory Tor State) are entitled by law.
This court in the State vs. McFadden, %
Mimi. 40, defines the distinction between or
ganlzed and established counties by stating in
effect that the establishing of county is the
setting apart of certain territory to be in the
| future organized political community or
quasi corporation for political purposes and
the organizing of a county is the vesting in the
people OF such territory such corporate rights
and powers.
The establishing and organizing of counties
Is LETT with some restrictions as to bounda-
ries) wholly with the legislature and until
some act of the legislature authorizing it the
people of no district have the right to act as an
organized county.
1t is conceded that the county of Big Stone
has never been expressedly declared by the
legislature to be an organized county and that
|
grant to the people of that county of
the right to elect the officers in
question. But it is claimed that by reason of
the provisions of title 3, chapter 8, general
statute, Big Stone as well all other coun-
ties s, IN the State, was recognized as organized
That chapter is entitled Counties and Coun-
ty Officers" Title l divides the State into
seventy-three counties, naming them, and de-
votes section to each county. The formula
as to every county is the same: ''The county
of - is established and bounded as follows y
The names and boundaries of counties as pre-
| vlously existing a. generally, if not in all
cases, preserved. Some of the counties named
were previously organized, and others only es-
| tabished counties. Title 2 is entitled ''Or-
| ganization, powers and duties'' 1t provides
that each organized county within this State is
a body political and corporate and az snch
empowered to act for the following purposes
Then follows the power to sue and be sued to
purchase, hold and convey property; to make
contracts and provisions for county build
lngs; to the manner of suing and
being sued, and of determining claims
against the county. The fact that some coun-
ties are organized and others are not is fire.
quently recognized throughout the chapter as
distinctly as in title 2. Title 3, relied on by
respondents as by implication or recognition.
organizing all the counties in the State is en-
TITLED county commissioners" The first Sec
| tlon provides every county shall be deemed
| an organized county for the purpose of this
| title, and shall have a board of county commits
sioners,'' prescribes how many there shall be.
and their terms of office. The subsequent sec
tions of the title relate to the mode of cleo
ton, or appointment. of county commissioners,
and their powers and duties. The title pro-
vldes for the election. or appointment, of as
SCISSOR, judges of election and justices of the
peace, but does not expressly provide that there
shall be any county officer other than county
commissioners. In prescribing the powers and
duties of the commissioners, the title frequent-
~ refers to other officers, such as county
auditor, treasurer, sheriff, clerk of the district
court &C.. and from these references it is argued
that each of the 4