Harrison v. Board of County Com'rs of Bannock County

• Decision Date: 23 October 1948
• Docket Number: 7480
• Citation: 198 P.2d 1013,68 Idaho 463
• Court: Idaho Supreme Court
• Parties: HARRISON et al. v. BOARD OF COUNTY COM'RS OF BANNOCK COUNTY et al

198 P.2d 1013

68 Idaho 463

HARRISON et al. v. BOARD OF COUNTY COM'RS OF BANNOCK COUNTY et al

No. 7480

Supreme Court of Idaho

October 23, 1948

Appeal from District Court, Fifth Judicial District, Bannock County Guy Stevens, Judge.

Affirmed.

B. A McDevitt, of Pocatello, for appellants.

The statutes of Idaho, in regard to election contests, are not exclusive. Section 33-1701, Idaho Code Annotated; Ashley v. Richard, 32 Idaho 551, 185 P. 1076; 18 American Jurisprudence, sec. 277, Elections, page 362; Walker v Junior, 247 Ala. 342, 24 So.2d 431, 165 A.L.R. 1257.

Preliminary steps set forth in the Statutes are mandatory before a sale of the bonds and must be strictly complied with and the statutes will be interpreted in favor of the person attacking the bond issue. Public Securities and Obligations, 43 American Jurisprudence, sec. 71, et seq., commencing on page 328.

H. F. McQuade, Pros. Atty., C. M. Jeffery and Carl Christensen, all of Pocatello, for respondents.

The sufficiency of the petition requesting the calling of the election, both as to the numbers who signed said petition and their qualifications, cannot be questioned after the election has been held, and a speedy and adequate remedy is provided by the law under which an appeal could have been taken from the order of the county commissioners calling the election. Section 30-1108, I.C.A.; O'Connor v. Board of Commissioners of Bear Lake County, 17 Idaho 346, 105 P. 560; Picotte v. Watt, 3 Idaho 447, 31 P. 805; Meller v. Board of Commissioners of Logan County, 4 Idaho 44, 35 P. 712; Morgan v. Board of Commissioners of Kootenai, County, 4 Idaho 418, 39 P. 1118; Rogers v. Hays, 3 Idaho 597, 32 P. 259; Udy et al. v. Cassia County et al., 65 Idaho 585, 149 P.2d 999.

Hyatt, Justice. Givens, C. J., Holden, J., and Baker, D. J., concur. Miller, J., sat but did not participate in the decision.

OPINION

Hyatt, Justice.

Plaintiffs brought this suit against defendants, as the board of county commissioners of Bannock County, seeking a decree adjudging a special bond election held in Bannock County on November 5, 1946, and the proceedings preliminary thereto, to be void, and that defendants have no right to issue the bonds voted at such election.

The pertinent allegations of the complaint, in substance, are summarized and numbered for convenience as follows:

1. That the defendants, as a board, were petitioned by 5,106 persons to issue the bonds of the county in the sum of one million dollars for the construction of certain hospitals in Bannock County; that although said number of petitioners was in excess of 30% of the 15,001 persons voting for secretary of state at the preceding general election, nevertheless, 2,602 of said petitioners were not qualified electors and taxpayers of Bannock County.

2. That thereafter defendants ordered a bond election to be held November 5, 1946, but no proper notice was given, in that:

(a) the purpose for which said bonds should be issued was not specifically set forth in the commissioners' proceedings,

(b) no proper proceedings or order (for the election) were placed in their minutes so as to give notice of the election by the publication thereof;

(c) in no precinct were there posted two notices of election.

3. That prior to the election, defendants circulated misinformation as to the tax levy necessary to pay said bonds, which induced all to sign said petition and vote for said bonds.

4. That the election held pursuant to said order was void, in that:

(a) no notice of election was given for the reasons above set forth;

(b) no poll list of taxpayers was issued to the election judges and no means existed for checking persons qualified to vote.

(c) the judges were not able to and did not check the qualifications of any person voting.

(d) no affidavit of qualification was required or taken by the judges.

(e) more than two-thirds of those voting were not qualified electors and taxpayers.

(f) the defendants were in a position, but failed, to furnish such poll and check lists at the time of election.

(g) more than 60% of the votes in favor of the bonds were cast by unqualified persons.

This action was commenced March 3, 1948, more than a year after the election and canvass of the votes thereof, and no bond or security for costs as required by Section 33-1708, I.C.A. in election contests was filed.

Respondents demurred on general and special grounds and moved to dismiss for the above reasons. The court granted the motion, sustained the demurrer, and on April 30, 1948 entered judgment dismissing the action. Appellants did not ask leave to amend although a copy of said judgment as proposed was served on their counsel on April 29, 1948, one day prior to signing and entry.

Appellants submit two propositions: First, although an election contest, the statutory contest is not exclusive, and this action can be maintained under the authority of Ashley v. Richards, 32 Idaho 551, 185 P. 1076. Second, this action is not entirely one to contest an election, but to have all the proceedings up to and including the election declared void.

In Ashley v. Richards, supra, the court held that, while election contests were unknown to the common law and dependent upon statute alone (Toncray v. Budge, 14 Idaho 621, 93 P. 26), there was no statutory provision for contesting the result of a special school district bond election, and in the absence of any other available remedy to prevent the issuance of bonds in violation of Article 8, Section 3 of our constitution, a taxpayer could maintain a suit in equity in order that the lack of authority to issue such bonds might be determined.

That case is not applicable here since a statutory procedure exists for the contest of this election and such remedy is exclusive as to matters that might be contested. Such is the prevailing rule in the United States. 18 Am.Jur. 362, Annotation Ann.Cas. 1913 E, page 982, State ex rel. Abercrombie v. District Court, 37 N.M. 407, 24 P.2d 265.

Our statutes, I.C.A., provide as follows:

"33-1701. Grounds of contest. -- The election of any person to any public office, the location or relocation of a county seat, or any proposition submitted to a vote of the people may be contested:

"1. For malconduct, fraud, or corruption on the part of the judges of election in any precinct, township or ward, or of any board of canvassers, or any member of either board sufficient to change the result. * * *

"5. When illegal votes have been received or legal votes rejected at the polls sufficient to change the result.

"6. For any error in any board of canvassers in counting votes or in declaring the result of the election, if the error would change the result."

"33-1705. Jurisdiction -- Removal of county seats and special questions. -- The district courts of the respective counties shall hear and determine contests of election in regard to the removal of county seats, and in regard to any other subject which may by law be submitted to the vote of the people of the county, and the proceedings therein shall be conducted as near as may be hereinafter provided for contesting the election of county officers." (Emphasis added.)

Section 33-1708, I.C.A., provides that a contestant shall file the complaint for an election contest within twenty days after the votes are canvassed, and must also file a bond conditioned to pay all costs in case the election be confirmed, the complaint dismissed, or the prosecution fail.

Assuming, but not conceding or deciding, that poll and check lists and affidavits of qualification were required to be used by the election officials, their failure so to do would be a ground of contest under subdivision 1 of Sec. 33-1701, I.C.A., supra. Voting by unqualified persons would be a ground of contest under subdivision 5 of the same section.

So far as these grounds are concerned, appellants cannot maintain this action since such matters could have been brought up by direct contest of the election and the action to this extent partakes of a contest.

Taking up the alleged invalidity of the petition for election, the complaint is defective in that it does not allege that the petition had an insufficient number of resident taxpayer signers, but "that 2602 of the persons whose names or signatures appear on said petition were not qualified electors and taxpayers within Bannock County." Sec. 30-3302, I.C.A., as amended by Chapter 116, 1945 Laws, only requires the petition to be signed by a certain number of resident taxpayers and is silent as to qualified electors. A person may be a taxpayer and yet not an elector. Under Section 30-3302, I.C.A., as amended by Chap. 116, 1945 Laws, the county commissioners had the authority to receive the petition, the implied right to determine its sufficiency, and the power to order the election. No other body or official is given command of these matters. It must be presumed, in the absence of any allegations in the complaint to the contrary, that the board found the petition sufficient, before ordering the election. If they erroneously found the petition sufficient, then their action was not void but voidable since they had the authority to act in regard to it.

Where a board of county commissioners acts on a matter in which it has authority, its action or order is final if no appeal is taken. Udy v. Cassia County, 65 Idaho 585 at page 592, 149 P.2d 999; Sizemore v. Board of County Commissioners, 36 Idaho 184, 210 P. 137; Johnston v. Savidge, 11 Idaho 204, 81 P. 616; School Dist. No. 25 v. Rice, 11 Idaho 99, 81 P. 155; Corker v. Elmore County Commissioners, 10 Idaho 255, 77 P. 633.

Section 30-1108, I.C.A. provides:

"Any time within twenty days after the first publication or posting of the statement,...