
    THEODORE STREISSGUTH v. JOHN GEIB and Others.
    
    February 2, 1897.
    Nos. 10,234—(226).
    Change of County Seat — Competing Petition.
    Where a petition for the change of a county seat, in due form and in fact containing the required number of signatures, has been presented, no competing petition can be received or acted on until an election has been held on the first petition, and until the expiration of five years thereafter, or until it has been withdrawn without an election.
    Same — Injunction.
    Injunction will lie to prevent unauthorized action by the board of county commissioners and county auditor on such second petition.
    Appeal by defendants from an order of the district court for Sibley county, Cadwell, J., denying a motion to dissolve an injunction.
    Affirmed.
    
      Oeo. A. McKenzie and Somerville dc Olsen, for appellants.
    
      McCleUmd ds Tifft, John Lind, and P. A. Cosgrove, for respondent.
    
      
       Reported in 69 N. W. 1097.
    
   MITCHELL, J.

In December, 1895, pursuant to Laws 1889, c. 174, a petition (in due form and signed by tbe required number of legal voters) for the change of tbe county seat of Sibley county to tbe village of Arlington was presented to and filed with tbe county auditor. When tbe board of county commissioners met, in January, 1896, to act on this petition, as provided by section 2 of tbe statute referred to, they erroneously and unlawfully struck off tbe names of 144 persons, which left less than tbe required number of signers on tbe petition. In mandamus proceedings against tbe board judgment was rendered, in March, 1896, requiring them to reconvene, count tbe names thus unlawfully stricken off, and file a new certificate. From this judgment tbe board appealed, and this appeal was pending when this action was brought, but tbe judgment has since been affirmed. State v. Geib, 66 Minn. 266, 68 N. W. 1081. In April, 1896, and while this appeal was pending, another petition was presented to tbe county auditor, praying for tbe change of tbe county seat to tbe village of Gaylord. Pursuant to notice given by tbe county auditor, tbe board of county commissioners met April 21, 1896, and were about to take action on this petition, and file their certificate of tbe number of signatures lawfully attached, upon which, when made, tbe county auditor threatened to fix a time for bolding an election thereon. Thereupon tbe plaintiff brought this action to enjoin tbe board and tbe auditor from taking such proposed action.

Tbe statute provides that a petition for tbe change of county seat must be signed by legal voters to a number equal to not less than 60 per cent, of tbe whole number voting at tbe last general election. There could not well be two competing petitions of this kind at tbe same time. Tbie statute further provides, where a special election has been held for tbe change of a county seat, no petition for a change shall be received and filed, and no proceedings bad upon such petition, until tbe expiration of five years from tbe date of such special election; also, that no special election shall be called for voting upon the question of changing any county seat to more than one place at tbe same time. It is clear, from- these provisions, that when a petition in due form, and in fact containing tbe signatures of the required number of voters, is presented, it has the exclusive right of way, and no other petition can be received or acted on until an election is held upon it, and until the expiration of five years thereafter, or until it has been withdrawn without an election; also, that the board of county commissioners cannot, prevent or change this result by unlawfully striking names from the first petition, or by delaying an election upon it by taking an appeal. Upon the facts alleged as above in the complaint, the board of county commissioners had no authority to take action on this second petition; neither would the county auditor have any authority to call an election on any certificate which the board might file. Injunction will lie to prevent such proposed illegal action. Todd v. Rustad, 43 Minn. 500, 46 N. W. 73.

Order affirmed. 
      
       G. S. 1894, §§ 647-656.
     
      
       G. S. 1894, § 648.
     
      
       G. S. 1894, § 647.
     
      
       G. S. 1894, § 651.
     