On Petition for Rehearing.
A petition for a rehearing has been filed in which the claim is made that the finding of the commissioners as to the fact of a public demand is final and conclusive, and cannot be attacked in the injunction proceedings. The contention of counsel in short is that in such a case if the commissioners choose to hold that two and two make six, or that ten out of two hundred and twenty-three is a number in itself sufficient to indicate a popular demand, or to make some other equally grotesque holding, the public and the courts must sit idly by and see an expensive election or proceeding carried on. Such, we believe, never has been and never will be the law. A holding such as that above on the part of a commission, though perhaps innocently made, is, in the eyes of the law, equivalent to fraud, and in such cases no court will hold that the exercise of discretion or of quasi judicial determination is binding.
We have carefully examined the cases’cited by counsel for petitioner. In none of them, however, are the facts similar to those in the case at bar. In the case of State ex rel. Little v. Langlie, 5 N. D. 594, 32 L.R.A. 723, 67 N. W. 958, for instance, the court merely held that “after a county-seat election has been ordered and held, and a sufficient vote is cast in favor of some one place to work a relocation of the county seat, the question whether the petition presented to the board of county commissioners praying that such an election be held was signed by a sufficient number of voters is not open to judicial investigation when the board has found that it was so signed.” It will be noticed that in this case the election had been held and the popular opinion and de*203sires expressed. In truth the very fact was shown by the election which the petition was intended to state, and that was that there was a desire for a change of the county seat. This is the reason why the court held ■as it did. This is plain from the language of the opinion itself. It .said: “We do not think that, after an election has been held, and a sufficient vote has been cast in favor of a place to work a change of the -county seat to such place, the question whether the petition had upon it the requisite number of names is open to judicial investigation. While a sufficient petition is undoubtedly necessary, yet the question lies deeper than that. What body is to settle this matter finally? 'This is the pregnant inquiry. When we consider the nature of the •question to be passed upon, tbe peculiar facilities that county commissioners living in close contact with the people have for reaching a ■correct result, and the enormous expense involved in a trial of that question in court, we are impelled to the conclusion that the decision •of the board is final; at least, after an election is had which demonstrates that the requisite number of voters luere in favor of a change. In the case before us it appears that the voters of Traill county were .•almost unanimous in their desire for a change, Caledonia receiving only 218 votes out of 1,882 votes cast on that issue. The board is to receive the petition, is to pass upon its sufficiency, and is to order the ■election if satisfied that it is sufficient. Here is a clear submission of this question of fact to the board for adjudication. The statute contemplates that the board is to settle it one way or the other. No other body is given jurisdiction over the matter. It is left to the judgment of the board, to the end that the taxpayers shall not be burdened with the expense of an election unless there is a strong sentiment in favor of a change, and also to the end that, when there is a sufficiently widespread desire for a relocation to justify the expectation that the vote on the subject will accomplish something, and not prove futile, the citizens of the county may enjoy the right to vote on this issue. We think such a question may be safely left to the final decision of the county commissioners of a county. They are elected for a short term. They stand close to the people, and under such circumstances an abuse of the power is not to be expected. If the power is abused, the attempt of the board will prove abortive, if the voters do not desire a change. The only consequence of their wrongful action will be the expense of *204the election, so far as it relates to the special matter, which will be trifling, in view of the fact that the question is to be voted on at the general election, and in addition the increased excitement of the election owing to the additional issue before the voters for settlement. These consequences are trivial as compared with the evils flowing from the doctrine that the question whether two thirds of the voters signed the petition is open to investigation after two thirds of the voters have' declared in favor of a change of the county seat to another place, and so open to investigation for all time.”
In the case of State ex rel. Plain v. Falley, 8 N. D. 90, 76 N. W. 996, all that was held was that the duties of the secretary of state, in certifying the names of the legislative nominees to the auditors of the proper counties, were ministerial, and not judicial. It is plain that this case has no application to the one at bar. In State ex rel. Laird v. Gang, 10 N. D. 331, 87 N. W. 5, we merely have a case where the board of county commissioners refused to call an election for the organization of a civil township on the ground that the petition was not signed by a sufficient number of legal voters. In it they passed upon a question of fact as to whether the signers were electors or not. There was no evidence of abuse of discretion, and no suggestion of such an abuse of quasi judicial judgment as to in law amount to fraud. So, too, no r.eal harm was done by, nor any infringement upon personal or property rights perpetrated, or money wasted, by the refusal to call the election. In the case of State ex rel. Cooper v. Blaisdell, 17 N. D. 575, 118 N. W. 225, is to be found a holding similar to that in State ex rel. Plain v. Falley, supra, and is merely that the secretary of state, in certifying the names of candidates for state offices to the auditors of the different counties, merely acts in a ministerial capacity. In the case of Greenfield School Dist. v. Hannaford Special School Dist. 20 N. D. 393, 127 N. W. 499, an attempt was made to attack the organization of a school district several years after its organization, on account of an alleged defect in the petition, after taxes had been levied for three years and a schoolhouse built, and bonds issued for $9,000. It was a case not only in which there was no showing of fraud or of that which was equivalent thereto, or of a gross abuse of discretion or of judgment, but one in which the doctrine of estoppel was and could be asserted. The case of School Dist. v. King, 20 N. D. 614, 127 N. W. 515, pre*205sents facts somewhat similar to those in the case at bar in that an injunction was sought to restrain the annexation of certain territory to a school district. In it, however, the court said nothing about the ultimate'discretion of the board of education. It, on the other hand, expressly said that “the allegation of the complaint that the petition was 'falsely and fraudulently’ presented to the board of education is not followed by any proof to substantiate that general allegation. This allegation, even if deemed sufficient, must fail as not substantiated by proof. The same is true of the allegation in the complaint that the petition is not signed by a requisite number of .the legal voters of the territory attached to the village of Tower City for school purposes. As stated before, the defendants have shown by undisputed testimony that every requirement of the statute was literally complied with.” These are all of the cases cited from North Dakota. We have, in addition, carefully examined those cited from other states, and we make upon them exactly the same criticism that we do upon those cited from. North Dakota. The cases referred to are Currie v. Paulson, 43 Minn. 411, 45 N. W. 854; Slingerland v. Norton, 59 Minn. 351, 61 N. W. 322; Tucker v. Lincoln County, 90 Minn. 406, 97 N. W. 103; State ex rel. Buck v. Ravalli County, 21 Mont. 469, 54 Pac. 939; Scarbrough v. Eubank, 93 Tex. 106, 53 S. W. 573.
The petition for a rehearing is denied.