Doan v. Board of Commissioners of Logan County

• Decision Date: 16 March 1891
• Citation: 3 Idaho 38,26 P. 167
• Parties: DOAN ET AL. v. BOARD OF COMMISSIONERS OF LOGAN COUNTY
• Court: Idaho Supreme Court

26 P. 167

3 Idaho 38

DOAN ET AL. v. BOARD OF COMMISSIONERS OF LOGAN COUNTY

Supreme Court of Idaho

March 16, 1891

TAXPAYER MAY SUE TO PROHIBIT REMOVAL OF COUNTY RECORDS-STATUTE CREATING COUNTIES CONSTRUED-COUNTY SEAT-CONSTITUTION CONSTRUED.-Citizens who are residents, electors and taxpayers of a county may bring a suit for injunction to prohibit the removal of the county records from a place alleged to be the county seat, to a place claiming to be legally selected as the county seat of the county, and to test the legality of such selection when there is no speedy and adequate remedy at law.

ACT CREATING ELMORE AND LOGAN COUNTIES CONSTRUED.-Section 6 of the act creating the counties of Elmore and Logan, approved February 7, 1889, was not repealed or abrogated by section 2 of article 18 of the constitution.

COUNTY SEAT-NEW COUNTY.-Said section 2, article 18 was not intended to apply to the location of a county seat, consequent upon the organization of a new county.

CONSTITUTION AND STATUTE CONSTRUED TOGETHER.-A strained construction of the constitution is not required nor permitted, in order to work the repeal of statutes not clearly repugnant thereto. It is the duty of the court to give both the statute and the constitution such construction as will give effect to both unless the statute is so clearly repugnant to the constitution as to admit of no other reasonable construction.

COUNTY COMMISSIONERS-AUTHORITY TO SUBMIT QUESTION OF LOCATION OF COUNTY SEAT.-The election held in the state on October 1 1890, was the general election for that year, and the county commissioners of Logan county were authorized to submit the question of the permanent location of the county seat for said county to the voters at said election.

(Syllabus by the court.)

APPEAL from District Court, Logan County.

Judgment affirmed. Plaintiffs paid the costs of action, and execution issued.

P. L Williams and J. Bierbower, for Appellants.

The appellants, being residents, taxpayers, property owners, and qualified electors, are proper plaintiffs, and are entitled to the relief sought, if the case presented by the complaint is otherwise sufficient. (High on Injunctions, 2d ed., secs. 1269, 1321; Bradley v. Commissioners, 2 Humph. 428, 37 Am. Dec. 563; Pomeroy on Remedies, 2d ed., sec. 142.) The wrong shown in the complaint is such an irreparable injury as entitles the plaintiffs to relief by injunction. (Commonwealth v. Railroad Co., 24 Pa. St. 159, 62 Am. Dec. 372; Hamilton v. Whitridge, 11 Md. 128, 69 Am. Dec. 184; Gause v. Perkins, 3 Jones Eq. 177, 69 Am. Dec. 728.) Every election must be authorized by law, and in the authorization of elections the legislature invariably provides what officers shall be elected thereat, and what question shall be submitted to the voters. (Cooley's Constitutional Limitations, *598; Brewer v. Davis, 9 Humph. 208, 49 Am. Dec. 706; McCrary on Elections, 2d ed., secs. 109, 120, 121; Paine on Elections, secs. 5, 284, 285, 301, 307; People v. Weller, 11 Cal. 49, 70 Am. Dec. 754; Kenfield v. Irwin, 52 Cal. 164; People v. Hoge, 55 Cal. 612; Sawyer v. Haydon, 1 Nev. 75; Nevada v. Collins, 2 Nev. 351.)

Arthur Brown and S. B. Kingsbury, for Respondent.

To maintain an action on behalf of the public, it must be by somebody who is authorized to bind the public. The plaintiffs bring suit to prevent a change of the county seat, and to determine the constitutionality of the question. This is beyond the power of a private individual. Such rights can only be determined by public authority. (Demarest v. Wickham, 63 N.Y. 320; Doolittle v. Supervisors, 18 N.Y. 155; Osterhoudt v. Rigney, 98 N.Y. 229; McMillen v. Butler, 15 Kan. 62; Starin v. Edson, 112 N.Y. 215, 19 N.E. 670; 2 High on Injunctions, 1258, 1259; Paine on Elections, sec. 268.) Within the general grant of legislative power is the grant to submit to the people certain local questions, such as fixing a county seat. (McWhirter v. Brainard, 5 Or. 427; Wells v. Taylor, 5 Mont. 202, 3 P. 255; People v. Reynolds, 5 Gilm. 1; Cass v. Dillon, 2 Ohio St. 614; Thomson v. Lee Co., 3 Wall. 330; Commonwealth v. Painter, 10 Pa. St. 609.) No statute will be construed as repealing a prior one unless so clearly repugnant thereto as to admit of no other reasonable construction. (McCool v. Smith, 1 Black, 459; Bowen v. Lease, 5 Hill (N. Y.), 221; Ex parte Yerger, 8 Wall. 85, 105; Furman v. Nicol, 8 Wall. 44; United States v. Sixty-seven Packages, 17 How. 85; Red Rock v. Henry, 106 U.S. 596, 1 S.Ct. 434.)

MORGAN, J. Sullivan, C. J., and Huston, J., concur.

OPINION

MORGAN, J.

--Appellants, who were plaintiffs below, are residents, taxpayers, and qualified electors of the county of Logan, in this state. John Hailey, H. T. Smith, and J. S. Whitton, defendants, are members of the board of county commissioners of the said county of Logan. By authority of section 8, article 21 of the constitution, the governor, on the eighteenth day of July, 1890, "ordered an election to be held by the qualified electors of the state of Idaho at the usual voting places, or in such places as may be provided in each precinct, on the first day of October, 1890, for the purpose of electing the following officers, namely: A representative in Congress, a governor, lieutenant-governor, Secretary of State, state treasurer, state auditor, attorney general, superintendent of public instruction, and three justices of the supreme court; a district judge and district attorney for each of the five judicial districts of the state; for each county in the state, three county commissioners, a sheriff, county treasurer, a probate judge, a county assessor, a clerk of the district court, a county surveyor, and coroner; a justice of the peace and constable for each precinct in the state; eighteen senators and thirty-six representatives for the legislature"--directing the board of county commissioners of each county to assemble at the county seat on the twenty-eighth day of July, 1890, and proceed to order an election to be held on the said first day of October, for the election of all officers, state, district, and precinct; members of the legislature; a member of Congress; and directing that notices be given of such election, in the manner, and for the length of time, provided by the laws of the territory in cases of general elections for delegate to Congress, county and other officers; and directing that said election be conducted in all respects in the same manner as provided by the laws of the territory for general elections, including the registration of voters as provided by law. The board of county commissioners for Logan county, at the meeting held on the twenty-eighth day of July, 1890, made an order submitting to the voters of said county, at the election to be held therein on the first day of October, 1890, the question of the permanent location of the county seat of said county, alleging that said action was provided for in section 6 of an act of the Idaho legislature entitled, "An act creating and organizing the counties of Elmore and Logan, and defining the boundaries of Bingham and Alturas counties," approved February 7, 1889. Said special meeting was held pursuant to a notice published in the "Shoshone Journal," a newspaper published in said county of Logan, and in accordance with the proclamation of the governor. The notice calling the said meeting of the board of commissioners contained no statement that the matter of the selection of a permanent location of the county seat of said county would be acted upon. At said meeting the board of commissioners ordered that the question of the permanent location of the county seat of Logan county be submitted to the voters of said county at the election to be held October 1, 1890. At said election a majority of all the votes cast for the permanent location of the county seat of said county were in favor of the town of Bellevue, as appears by the canvass of votes made by the said board on the tenth day of October, 1890. On the seventh day of October, 1890, the plaintiffs filed their complaint in this cause, and alleged, among other things, that the defendants were about to remove the county archives, records, and property from the county offices in said town of Shoshone to the said town of Bellevue, and threaten that they will make such removal; and further allege that, unless restrained by the injunction of the court, they will take and remove the books, archives, etc., from said town of Shoshone to the town of Bellevue, to the damage of the plaintiffs and other taxpayers, electors and residents of said county; that said removal will be of great and permanent injury to all of the said residents, in that it will cost a large amount of the public revenue and moneys of said county to pay the expenses of the said removal, and will be of great and permanent disadvantage to the plaintiffs and other residents. Plaintiffs further allege that there was no petition whatever of a majority, or of any, of the qualified voters of said county ever made or presented at any time; allege that plaintiffs have no remedy at law; pray for temporary injunction until further hearing, and that it be made permanent on final hearing. To this complaint defendants demur upon the ground that the complaint does not state facts sufficient to constitute a cause of action; that the complaint does not state facts sufficient to entitle plaintiffs to any injunction, nor to entitle the plaintiffs to the interference of a court of equity. Filed October 21, 1890. On the same date the defendants filed their motion to dissolve the temporary injunction, and their answer; and deny that the county seat was ever permanently located at Shoshone; deny that the vote was taken for changing the county seat, but allege...