The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1912-11-26
.M[EAN COUNTY
WINS IT'S CASE
Division and Creation of Pro-
posed County of Stevenson
Falls Through.

Falls Through.
Bismarck. N. D., Nov. 25.-McLean
county will not be divided, the su-
preme court handing down q decision
today which holds against the pro-
posed Stevenson county. voted on in
the election Of 1908.
Because the returns from six voting
precincts were not reported to the
county c~anvassing board, and because
the board failed to secure the vote
from these precincts, the supreme
court holds that there is no way Of
determining whether or not the divi-
sion proposition was carried.
IT Is pointed out by the court that
SIX precincts to return a majority
against the division, although the vote
IN the precincts reported was II" favor
OF the proposition.
me case came up In the nature of
an action to compel the county audi.
tor OF Mclean county to certify the
division OF h county to the governor.
NJ. F. Minehan is the. relator ana n
=. thompson Is h defendant auditor.
The syllabus follows:
Decision Of Court.
At the general election In 1908 there
was submitted to the voters Of Nc
Lean county three propositions for
county division. including that Of the
proposed county Of Stevenson. con-
corning which the election returns
from forty.five only. Of the fifty-one
precincts OF Mclean county. were re-
to the county auditor, and only forty.
hve precincts as were returned were
canvassed. ~abstracted and certified as
to the result of such election BY the
county ~canvassing board. who made
return that IN said forty-ive precincts
a.006 votes favored the creation Of
stevenson county. with TAI votes
against Its creation. No return Of the
proposition was aver made or can
vassed or included in said return as
to the six omitted precincts of DOUG
las. Turtle Lake, Butte. Roseelen.
whitaker and She'll Creek; in which
six omitted precincts 354 electors vot-
ed at a election. sufficient. in num-
per to have constituted a majority
voted against such division. No proof
OF the result Of the election is in evi-
dence other than the certificate of
the ~canvassing board Of the county.
showing on its face such omission to
v these six precincts, and a
stipulation OF their omission from the
returns and canvass. and that 354
electors voted In such six omitted
precincts. In this mandamus proceed.
Ing. based upon the above facts. re-
sarding which there is no dispute, in
which 1t 10 sought to compel the coun-
ty auditor to certify to the secretary
OF state that a majority Of all votes
cast In said county at said election on
y n division was for the creation
of Stevenson county. and upon his re-
fusal to SO certify It is held:
l.. It was the duty Of the
Ing board Of Mclean county, under
Sec. 673. r. c. 1905. to rocur the
returns to be made and canyassed
from such six omitted precincts.
.: That the abstract of the vote
a a suelt division proposition: re-
shows O. it, face that it is incom.
plete and but = partial canvass Of the
whole vote cast In the county on such
question.
3. Such returns are prima fac,e
whence OF the precincts canvassed
n distracted by precincts as re-
CURED by statute; and where it %
pears on its face to be incomplete. as
not including the vote cast in six out
returns are not prima facie evil
dence Of the result of the election as
to all. precincts in the county. the
proof Of the result Of an election IN
forty-five precincts not constituting
prima facie proof as to the result Of
an election held in ffty-one precincts.
the whole county Of Mclean.
county division carried by a majority
OF all votes cast In said county Of Nc. |
Lean at said election is upon the re. |
lator. who by his pleadings and from
the nature Of the relief asked. must |
establish such fact before the court
can find that q majority existed in IA |
OF such county division PROPOSE |
ton.
s. Prima facie proof as to the "a.
suit OF such an election as to forty. |
i've precincts covered by such alb. |
stract Of returns by precincts is in
to entitle relator to relief. |
the further burden resting upon him
to establish that the actual vote of six
precincts could not in fact change the
result OF the election al canvassed in
said forty-five precincts: and there be-
such question In such omitted pre-
cincts. and in which precincts the
court will presume some vote was cast
In each upon county division, It is i'm |
possible to determine that a majority
of all votes cast in the whole county |
were in favor Of county division. Ac-
relator has not met the |
burden Of proof as to what the total |
votes Of the county was upon the pro-
posed county division.
6. The petition and alternative WRIT |
alleging the submission Of such ques-
ton at q 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 Canvass
Ing board canvassed. with the result |
thereby determined in favor Of such
county division. It is proper for q
auditor against whom the pro-
cedings are brought to answer. on be- |
half Of himself and parties interested, |
therein put in issue matters al
In the petition and alternative
writ. and allege a failure Of returns
from a portion Of the precincts, a can
yass by the board Of only a part Of all
the precincts In the county; and that |
The abstract Of returns as made by |
h county canvassing board is incom-
plete and not q finding of the result
Of the election in all the precincts Of
the county. and that county division
did not receive a majority Of all votes
cast at the election in such county on
such county division proposition.
such an answer but raises issues Of
triable in mandamus: and the
aostract OF the vote Of a portion only
OF the precincts Of such county does
not have h force Of a certificate Of
covering all precincts in said
Issues Of fact involved in this manda-
fnYa nrocaoIlor md oouo,,oI <ho ...S