State ex rel. Nicolin v. Board of County Commissioners

Upon the former appeal in this case from the order allowing a peremptory writ of mandamus against the defendants, county commissioners, directing them to act upon the petition of the relator and others for a change of the county-seat of Scott county, under the provisions of Laws 1889, c. 174, it was determined that the notice required by that act to be given was a condition precedent to action by the board upon the petition. State v. Com'rs of Scott Co., 42 Minn. 284, (44 N. W. Rep. 65.) This is an appeal from an order of the district court quashing and dismissing the subsequent writ of alternative mandamus allowed by the district court in the same matter, upon the motion of the respondents. The principal grounds of such motion were that it did not appear by the record that the notice of the meeting of the board was published for the time or in the manner required by the act referred to; and that in so determining the action of the board was judicial, and not subject to be reviewed by mandamus. We think the action of the court below should be sustained on the first ground. The statute requires that the notice shall be published once in each week for two consecutive weeks, immediately preceding the time fixed therein for the special meeting, in all the newspapers printed and published in such county during such period, and that there should be posted a duplicate thereof in a public place in each organized town in the county, not less than 10 days prior to the time fixed in such notice for the meeting. The special objection to the publication of the notice in this case is that the record conclusively shows that the notice was *324published in each paper less than two weeks immediately preceding the meeting. The meeting was appointed May 27, 1889, while in none of the five newspapers in which the notice was published was the notice inserted prior to May 15th, and the second-publication was on the 22d day of May, and in some cases as late as the 24th day of May. This was not a publication of two weeks’ notice, as required by the statute. Wilson v. Thompson, 26 Minn. 299, (3 N. W. Rep. 699.) This objection is insuperable, and the commissioners were right in refusing to proceed under the notice. The proof of the posting of the notice in the several towns was also defective, in failing to show that the same was posted in a public place. The court might, take notice that the post-office, court-house, and township bulletin-boards were public places, but not so as to the other places mentioned in the affidavit. If, however, the proof in this respect was-not according to the fact, an amended or new affidavit might have-been made.

With reference to further proceedings, it is proper to say that the-court is of the opinion that the action of the board on the question, of the sufficiency of the notice is not judicial, and does not involve-the exercise of judicial discretion. The matter was to be determined, upon inspection of the proof of publication, and if the proper notice-was in fact given, and the proper proof thereof made, it would be the.duty of the board to proceed, and take action upon the petition.

Order affirmed.