The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-09-01
ANY ONE CAN CARVE POLK COUN-
TY AS HE MAY Sc
LECT,
If HE CAN GET A MAJORITY.
STATE COUNTY BOUNDARY COM
MISSION WILL LET THEM
VOTE ON ALL.
Boldly From Certain Utterances of
the Supreme Court i'm u
Former Case.

Polk county people may vote this
year upon as many propositions for
county subdivision as the ingenious
schemers there resident can devise I'M
less some means can be found to take
the matter into the courts before cleo
ton day. There seem to be a number
of complications, however, and if the
language of Attorney General Childs,
in an opinion rendered to the state
county boundary commission yester-
day, is to be read literally, he takes
direct issue with rulings of the SUI
preme court in the state in a former
case involving Polk county. This
course is somewhat audacious, and
much interest is manifested in official
and legal circles as to the result of
this position on the future official ac-
ton of the state in this and similar
matters. The text of the attorneys
generals opinion, the recommendation
in which was adopted, Messrs Berg
and Dunn carrying it. over Gov.
Clough's opposition, is as follows:
GU state that sometime since four
petitions were simultaneously filed in
the office of the secretary of state, with
a view to the formation of as many
new counties out of the territory COM
prising the county of Polk; that no
part of the territory described in any
one of the said petitions was described
in any other thereof; and that your
self, together with the state auditor
and secretary of state, acted upon all
of the said petitions, and finding them
in all respects comfortable to law, you
thereupon issued your propositions to
the voters Of the county of Polk at the
next general election.
Subsequent to the issuance of such
proclamations, two other petitions were
filed seeking the formation of two new
counties out of the territory of said
Polk county, and embracing territory
also embraced in two or more of the
petitions already acted upon as afore-
said.
You now inquire whether it will be
proper to consider the two last named
petitions before those already acted
upon shall have been voted upon.
A similar question was considered two
years ago and received an affirmative
reply. 1t is evident that the statute
contemplates that one or more propo-
sitions may be submitted to the voters
of county at the same election.
1t is urged by counsel, that, assuming
this to be so, the statute does not, how
two or more propositions involving the
same territory. In support of this
view, my attention is called to the case
of State VS.. Armstrong, IS N. w. Rep.
6lS 1t is true that the Judge who wrote
the opinion in the case expressed him
self to that effect; but a careful rea ding
of the whole decision, discloSes that
what was there said was mere obiter,
and wholly unnecessary to the decision.
hon pc.e.1xv hold hot 81
propositions then under consideratio ton
could not be submitted for the reason
that they might result in reducing the
territory of the present county below
the constitutional limit. That fact was
necessarily decisive of the whole ques-
ton, and what was said upon the other
branch of the case cannot properly be
treated as authority anywhere, how
ever sound the views of the learned
Judge who wrote the decision.
1t is further strenuously urged that
the submission Of propositions involv-
Ing common territory is at variance
with sound public policy and there
fore not contemplated by the legis-
Iature. 1t is further said that in the
present state Of the law the board Great
ed by statute is substituted for the
legislature in such a proceeding and is
vested with sufficient discretion to
Justify non-action in the present mat
Ter.
/ cannot subscribe at all to the latter
view The authority of yourself and
associates is derived from the statute
and you must look to that alone in
determining your duty in the pending
matter AS l view the law 1t is in no
sense a matter of discretion. but a.
pure question of legislative intent.
| may concede that it is extremely
injudicious to submit to popular vote
propositions involving common terri
tory, and that such submission will tend
to confusion at the polls. I may go
further and say that it is not reason
able to suppose that the Legislature,
had 1t the power. would countenance
such submission by special law. But
after all is said. the fact remains, as
has by the general law provided for
the submission Of more than one pro-
position, without limitation or reser-
walton whatever Administrative off,
GERS will therefore in my Judgment,
assume graver responsibility than the
matter warrants by reading into the
statute words of limitation. The cues
ton is one which should engage the
attention of the courts, and petitioners
are entitled to have their rights deter
mined by such tribunals Under the
numerous decisions of the supreme
court of this state, yourself and as
scciaties are beyond judicial control. If.
therefore, you decline to act upon the
petitions, it must result in denial to
petitioners of judicial right in a mat
ter of great Importance to them, and
VIII be at variance with the general
tenor of the law Of this country. This
Is consideration of too serious import
to be lightly passed over The doubt
IN the case. which certainly exists.
Should be resolved in favor of the petit
toner's.
/ therefore follow the precedent of
two years ago and advise you that the
petitions in question should now be
acted upon.