Judge Olsen Directs

That Temporary

Injunction Be Issued.

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ORDER NO DECISION ON MERITS OF CASE

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Suit To Be Finally

Disposed Of At November Term Of Court.

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By his order filed Monday of this week Judge Olsen grants the motion of William Fesenmaier, Anton Herlich, Altmann, Simon Woratschka, Franz Robert Meidl, Joseph Beyer, Paul Kuehlbach, R. F. Kruggel and William Emmerich against the city of New Ulm and directs the issuance of a temporary writ of injunction restraining and enjoining the city and its servants and agents from any further action in the matter of contracting for or constructing any pavement or curbing on Minnesota Street between Third North street and Eighth North Street. As a condition to the issuance of said restraining order the court directs the plaintiffs to file a bond in the sum of $500 to be approved by the court, for the payment of such damages as the defendants or either of them may sustain by reason of the injunction if the court should finally decide that they were not entitled thereto.

One Issue Decisive

In its memorandum attached to the order and which forms part of it, the Court says that the decisive issue in the matter was the question of the right of the petitioners to withdraw their names from the petition at the hearing held before the city council September 14. If they had the right to withdraw their names when they did, then the number of names remaining on the petition would be fewer than the 25 per cent of the property owners required by law.

Cases Conflicting

Continuing the Court says that the exact question involved in this case has perhaps not been passed upon by the Supreme court of this state. In the case of the state vs. County Board 66 Minn. 519, the supreme court states the rule to be that the right of the petitioners to withdraw their signatures at any time before the petition is acted upon by the commissioners is absolute.

In another action, an election contest, the right to withdraw from the petition was denied on the ground that such contest was a matter of deep public interest, and that it was too late to withdraw after the matter had proceeded so far that the court had called a special term to hear the contest.

Cases in other states are quite as conflicting, some holding that names may not be withdrawn after a petition is filed; many others holding that names may be withdrawn at various stages ranging from the time when notice is given up to the time of letting of contract for the improvement.

Statute Construed

At the time of the hearing it was suggested by counsel that the question of the construction of the statute as to whether the petition must be signed by the owners of 25 percent of the frontage or only 25 per cent in number of such owners may become important. On this point the Court holds, altho unimportant on this motion, that it seems that the language of the statute is quite plain and requires the signature of 25 per cent in number of the owners of property abutting upon the portion of the street to be improved.

Order Not Final

Concluding, Judge Olsen says that this order is not a decision on the merits. Its only object is to retain the matter in its present stage until the trial of the action and decision therein. Trial maybe had at the November term, and as there is no intention to do any paving until next spring, the matter can be disposed of by trial or appeal before the time to do any paving arrives. Nothing further will be done in this matter until it has been tried and disposed of at the next term of the district court of Brown County which convenes in November.

New Ulm Review,

October 21, 1925

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