State ex rel. Minder v. O'Brien

Per Curiam. Appeal from a judgment of the district court of Murray county, adjudging that a peremptory writ of mandamus issue to appellant, E. V. O’Brien, as auditor of that county, commanding him to issue a county warrant for the sum of $711.90. On February 2, 1916, the judge of the district court of the Thirteenth judicial district, comprised of five counties, by order, appointed relator as referee on all judicial ditches then pending or that might thereafter be instituted in that district. Under that appointment relator, between March 2 and June 28, performed services and incurred expenses in connection with the preliminary work on Judicial Ditch No. 4, then pending in Murray county, to the amount of $711.90. , On August 31, 1916, at the final hearing thereon, that ditch proceeding was dismissed by order of the court, upon the ground that the petitioners therefor refused to file a further bond as required by the court. On September 15, 1916, relator presented a verified statement of his claim to the judge of the district court for audit and allowance. The judge allowed the claim without any notice of hearing thereon being given to the county, and by order directed the auditor to issue a county warrant for the payment thereof. Relator presented the account so allowed to the auditor and demanded a county warrant. The auditor refused to issue the warrant. This action followed and finally judgment was entered directing a peremptory writ of mandamus to issue, requiring appellant, the county auditor, to issue the county warrant asked for. From that judgment this appeal was taken. The order appointing relator as referee on all ditches in the district, is a mere nullity, being clearly unauthorized by the statute. The allowance of relator’s claim is governed wholly by the decision of this court in State v. District Court, infra, page 204, 164 N. W. 815, holding the provision of section 5571 of the statutes invalid insofar as it provides for the allowing of claims against a county without notice of hearing thereon, as not being due process of law. Judgment reversed.