Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-01-19
STEVENSON COUNTY
CASE IS DECIDED
SUPREME COURT REVERSES De
CISioN OF M'LEAN COUNTY
COURT.
New County Will Not Be Organize
Until After Next Election Will Be
Probable Result.

ProoabIe Result.
The supreme court in a decision
handed down yesterday morning, re-
versed the district court of Mclean
county in its action granting writ OF
mandamus to compel the certification
of the returns Of the election involv.
ing the creation of Stevenson county
to the secretary of state
This decision of the court is based
on the ground that the law Great.
ing new counties is statutory and
must be substantially complied with,
and in the light of the claim of the
defendant that the notice for publica
ton of the election for Stevenson
county was not published according
to law, the supreme court holds the
action of the lower court in prevent
ing the offer of proof Of this fact is
warrant for reversal.
Stevenson county was to have been
created from the northwestern :por-
ton of Mclean county and was voted
on at the last general election. The
proposition carried, but it was claim
ed substantial irregularities had oc-
CURED in the calling and conduct of
the election. Then an action was
brought to compel the ecounty audi
tor to certify the returns, as the law
requires for new counties. This writ
was granted by the district court and
its action is reversed by the supreme
court.
The case is remanded to the district
court for such further action as may
be taken according to law. Under the
decision of the court with reference
to the publication of the notice of
election, it seems unlikely that there
will be any organization of a new
county until another general election
at least.
The syllabus of the decision is as
follows:
State of North Dakota, ex REL, NJ. F..
'Minehan, respondent, VS.. Paul F.
Meyers as county auditor of Nc
Lean county, in the State of North
Dakota, appellant.
I. Proceedings for the division OF
a county and for the organization of
new counties are strictly statutory
and no amendment can be INDUCED in
their favor.
2. Such statutes should receive a
liberal construction to the end that thu
legislative intent may be given ef:
feet, but such intent being reasonably
apparent. it is ircument IRON those
who seek to interfere with exist ,g
county organiza tions by the creation
of new counties to at least substan.
italy conform to the requirements of
the statute.
g. BY these proceedings it Is!
sought to compel. by mandamus. the
defendant to make his certificate to
the secretary of state as prescribed
by chapter 80, laws 1907, relative to
the division and organization of
counties. An alternative writ was is.
sued as prayed for. to the sufficicncy
Of which defendant objects upon the
ground that it fails to allege facts
authorizing any relief
Held, such objection is without merit.
Such alternative writ. upon its face
shows a full compliance by the petit
TONERS for the organization Of the
proposed new county Of Stevenson,
and others, of all the statutory pre-.
requisites. In the petition for the or
eanization of such proposed new
rounty it's western boundary was des-
of the Missouri river whereas, it man
ifestly appears that it was the intcn-
ton of all concerned that the western
boundary Of such proposed new coIr-
t. should be co-extensive with the
present western boundary of Mclean
county, which is the center Of rhe
main channel of the Missouri river.
Held, that such manifest intention
will be given effect by constituting the
language of the petition as designat.
ing the western boundary of such
proposed new county to be the center
Of the main channel of such river.
The other objections urged to the
sufficiency of such alternative writ
cannot be considered in the absence
of certain extraneous facts which
have not been incorporated in the
record by the settlement of a state
ment of the case.
4. The trial court, on REALTORS mo-
ton, struck out most of defendants
answer embracing new matter Of a
relevant and material character, and
by the same order and on like mo-
ton of relator, the issuance of pre-
emptory writ was directed.
Held. /. That such order involved
the merits and necessarily affected the
Judgment within the meaning Of Sec
ton 1851 R. c., 1905, hence it is a
part of the judgment roll proper and
it's correctness may be reviewed by
this court on appeal from the judy
ment.
2. Such order was prejudical err