The Washburn leader. [volume] (Washburn, McLean County, N.D.) 1890-1986, 1912-11-29
as to what the total vote of the county,
was upon the proposed county division
6 Tho xaofition and alt ti.xl, x..x:As

as to what the total vote of the county.
was upon the proposed county division.
6. The petition and alternative Writ
alleging the submission of such ques-
tion at a general election and
that the returns thereof from each and.
all of the election boards of all the pre-
cincts in the county were made and
returned and by the county canvassing
board canvassed, with the result there
by determined in favor of such county
division, it is proper for a county audi
tor against whom the proceedings ara
brought to answer, on behalf of him.
self and parties interested, and therein
put in issue matters alleged in the
petition and alternative writ. and allege
failure of returns from portion of
the precincts, a canvass by the board
of only part of all the precincts in
the county, and that the abstract of res.
turns as made by the county canvassing
board is incomplete, and not finding
of the result of the election in all the
precincts of the county. and that county
division did not receive majority of all
votes cast at the election in such coun-
ty on such county division proposition.
Such an answer but raises issues of
fact triable in mandamus; and the alb
stract of the vote of portion only of
the precincts of such county does not
have the force of a certificate of ell
ection of covering all precincts in said
county, or preclude to trial of the is
sues of fact involved in this mandamus
proceeding and compel the auditor to
resort to statutory contest to deter
mine the actual result of the election.
z. 1t was proper to consider AZ
evidence stipulated facts as to the
number of electors voting at such gen.
eral election in the six omitted pre-
cincts as additional proof that the
returns as certified were incomplete
and as being admissible under the bur
den of proof upon relator under the
pleadings; and also as showing facts
upon which might be based the exer-
else of discretion by the court in the
granting of denial of the writ, the right
to which is not strict legal right, bute
discretionary to the extent that the
court should not issue the writ until
the relator fully prove himself entitled
to the redress sought by the writ. To
determine the relator's right to the
writ the trial court could repeive
testimony, even though prima facie
right thereto had been established.
8. Section 1856 of the state constitu--
tion, providing that ''all charges in the
boundaries of organized counties before
taking effect shall be submitted to the
electors of the county or counties to be
affected thereby, at general election,
and be adopted by majority of all the
legal votes cast in each county at such
an election" makes it the duty of the
court to know that proposed county
division has been so approved by such
majority vote of all electors in the
county voting upon the question before
the court can hold county division to
have legally carried and issue the writ
of mandamus asked for. Under this
constitutional provision all doubt as to
the result of the election must be re-
solved against relator seeking to
obtain judicial determination thata
new county has been so created.
9. To entitle relator to the writ the
burden is upon him to establish that =
majority of all votes cast in said county
on said proposition at the election was
in favor of such county division; and no
proof having been made in this case as
to the result of such election in Nc
Lean county, there is failure of proof;
and it is ordered that the alternative
writ, and the premptory writ thereon
issued, be vacated and quashed and
these proceedings dismissed.
(Syllabus by the Court.)
An appeal from the district court Of
Mclean county. Crawford, ].
Reversed and dismissed. Opinion BY
Goss, J. Special concurring opinion by
Bruce, j., and Spaulding, c., dissent
ing opinion by Burke, ].
H. r. O'Hare, of Garrison, George
r. Robbins and Geo. A. Bangs of Grand
Forks, attorneys for relator and re-
spondent.
McCulloch & Nelson. of Washburn,
and Engerud, Holt & Frame, of Fargo.
attorneys for defendant and appellant
Navigation Closed