Guernsey v. McHaley

• Decision Date: 24 November 1908
• Citation: 98 P. 158,52 Or. 555
• Parties: GUERNSEY et al. v. McHALEY, County Judge, et al.
• Court: Oregon Supreme Court

98 P. 158

52 Or. 555

GUERNSEY et al. v. McHALEY, County Judge, et al.

Supreme Court of Oregon

November 24, 1908

Appeal from Circuit Court, Grant County; Geo. E. Davis, Judge.

Action by C.G. Guernsey and R.A. Clark against R.R. McHaley, County Judge, and others. Judgment for defendants, and plaintiffs appeal. Reversed, and judgment entered.

This is a suit against the county judge and commissioners of Grant county to enjoin and restrain them from making an order prohibiting the sale of intoxicating liquors in such county in accordance with the result of an election held therein on June 1, 1908. From the record it appears that, pursuant to a proper petition therefor, the county court on May 6, 1908 duly entered an order calling an election in such county, to be held on June 1st, to determine whether the sale of intoxicating liquors should be prohibited in the county, as a whole. The county clerk thereupon issued and delivered to the sheriff the requisite notices for such election, but none were posted in one precinct, in another the notices were posted for only 11 days, in another for only 10 days before the election, and in still another but 3 notices were posted and these for only 8 days. The election resulted in a small majority in favor of prohibition, and this suit is brought by a firm of retail liquor dealers for the purpose of testing its validity.

V.G Cozad, for appellants.

A.M. Crawford, Atty. Gen., for respondents.

BEAN C.J. (after stating the facts as above).

The right of plaintiffs to maintain the suit is settled by Marsden v. Harlocker, 48 Or. 90, 85 P. 328, 120 Am.St.Rep.786, and by the recent case of Hall v. Dunn, 97 P. 811, and therefore the only question necessary for our consideration at this time is whether the election was invalid, because of the failure to give notice thereof as required by law.

The local option law (chapter 2, p. 41, Laws 1905) provides that whenever a petition therefor, signed by not less than 10 per cent. of the registered voters of any county, or subdivision or precinct thereof, shall be filed with the county clerk in the manner prescribed in the act, the county clerk shall order an election to be held at the time mentioned in such petition to determine whether the sale of intoxicating liquors shall be prohibited in such county, subdivision, or precinct thereof, as the case may be; the first election to be held on the first Tuesday after the first Monday in November, 1904, and thereafter only on the first Monday of June of any year. At least 20 days before any election, the county clerk is required to deliver to the sheriff of the county at least five notices of the election for each precinct in the county voting on the question, the form of such notice being prescribed by the statute, and it is made the duty of the sheriff, at least 12 days before the election, to post said notices in public places in the vicinity of the polling places or place, and enter of record his compliance with the provisions of the law in this regard.

The courts are practically unanimous that, where the object of an election and the time and place are provided by general law, the requirement as to notice is directory, and a failure of the officer charged with the duty of posting or publishing such notice to discharge his duty in that regard will not invalidate the election, and it seems equally as well settled that, if the time of the election is to be fixed by some public authority, after the happening of some condition precedent, or if some special question is in like manner to be submitted to the voters at a regular election, the law authorizing such election, or the submission of such question, and providing for notice thereof, must be strictly followed. Cooley, Const.Lim. *603; Marsden v. Harlocker, 48 Or.

90, 85 P. 328, 120 Am.St.Rep. 786; George v. Oxford Township, 16 Kan. 72; Demaree et al. v. Johnson et al., 150 Ind. 419, 49 N.E. 1062, 50 N.E. 376; Stephens v. People ex rel. 89 Ill. 337. The reason for this distinction is that every voter is presumed to know the law and be thereby informed, as to the time when, the place where, and the officers to be elected, or matters to be determined at a general election, held in pursuance of a public statute, and thus to be fully advised in the premises but where the election is not held in pursuance of such a general law, or some matter not provided in such law is to be determined thereat, this presumption does not arise, and the law authorizing such election or the submission of such question must be strictly pursued, and the required notice given. This is the rule announced by this court in Marsden v. Harlocker, supra, as applicable to an election under the local option law, and, while the question was not directly involved in that...