In re Application of Connolly

• Decision Date: 15 October 1908
• Citation: 117 N.W. 946,17 N.D. 546
• Court: North Dakota Supreme Court

117 N.W. 946

17 N.D. 546

IN THE MATTER OF THE APPLICATION OF WILLIAM CONNOLLY AND VINCENT KOVASH FOR A WRIT OF HABEAS CORPUS

Supreme Court of North Dakota

October 15, 1908

Application of William Connolly and Vincent Kovash for writ of habeas corpus.

Application granted.

Writ issued.

Crawford & Burnett and Ball, Watson, Young & Hardy, for petitioners.

R. N Stevens and J. M. Hanly, for defendants.

OPINION

FISK J.

This is a joint application by William Connolly and Vincent Kovash for the issuance by this court of a writ of habeas corpus. The petitioners, who are county commissioners of Dunn county, were adjudged guilty of contempt of court and committed to jail for refusing, as such commissioners, to comply with a certain peremptory writ of mandamus issued by the judge of the district court commanding them to call a special election for the purpose of submitting to the voters of said county the question of relocating the county seat therein, pursuant to a petition of the inhabitants thereof under the provisions of chapter 77, page 159, Laws 1905. Counsel have stipulated that the merits may be heard and determined on the application and stipulation of facts, without the formal issuance of a writ. They have also stipulated that the following are the sole questions involved: (1) The constitutionality of chapter 77 aforesaid; (2) whether said act applies to Dunn county; (3) whether said act was repealed or amended by chapter 61, page 86, Laws of 1907; and (4) whether, in case chapter 77 is valid, a majority or two-thirds vote is necessary to remove the county seat. It is agreed by counsel that, if chapter 77 aforesaid is valid and applies to Dunn county, the refusal to order the election was wrong, and petitioners were duly committed for contempt, and hence are not entitled to the writ prayed for. On the other hand, if said act is void or is not applicable to Dunn county, the petitioners are entitled to their liberty.

As we view the matter, the first two are the only questions requiring consideration. Following is the full text of said law:

"Section 1. In all organized counties in this state wherein prior to the taking effect of this act no courthouse has been constructed or is owned by such county, the county commissioners shall, upon the petition of the inhabitants of such county, equal in number to one-third of the votes cast therein for Governor at the last preceding election, submit to the electors of such county at a special election to be called in sixty days, or at the next general election as may be required by said petition, the question of moving the county seat from the place where it is located by law or otherwise, to another place. Such petition must be verified by the affidavit of each of the signers thereof, stating that he is a resident of the county, and a qualified elector therein and that he personally signed such petition.

"Sec. 2. Notice of such election shall be given in the manner prescribed by section 1882 of the Revised Codes of North Dakota for the year A. D. 1899.

"Sec. 3. In voting on the question each elector must vote for the place in the county which he prefers by placing opposite the name of the place the mark 'x.' When the returns have been received, compared, and the result ascertained by the board of county commissioners, if more than one-half of all the legal votes cast by those voting on the proposition are in favor of any particular place, the board must give notice of the result by publishing a notice thereof, in each newspaper in the county, at least once a week for four consecutive weeks, and the place so selected as the county seat shall be designated in such notice as the county seat, from a date specified therein not more than sixty days after the election.

"Sec. 4. The board of county commissioners shall cause a statement of the result of said election to be deposited and transmitted as provided by section 1885 of the Revised Codes of North Dakota for the year A. D. 1899.

"Sec. 5. All acts and parts of acts inconsistent with this act are hereby repealed; provided, however, that this act shall not apply in counties having more than six thousand five hundred inhabitants according to last census.

"Sec. 6. Whereas, there is now no law covering the subject matter named in this act, therefore an emergency exists, and this act shall take effect and be in force from and after its passage and approval."

It will be observed that the legislature, by said act, recognizes those counties wherein courthouses have not been erected as a class by themselves, and prescribes for such class a method to be pursued in the removal and relocation of county seats different and less difficult from that applying to the other counties of the state. It is conceded by counsel for petitioners that such a classification of the counties for the purposes aforesaid is permissible, if the act is general in its operation when applied to such class; but it is contended by them that the act in question is vicious for the reason that it is not general, but special, in its operation, as it does not embrace all counties without courthouses, but is expressly limited to counties having not more than 6,500 inhabitants, and also to those counties which were organized prior to the date of the passage of the act. It is argued that there is no valid reason why a county without county buildings having more than 6,500 inhabitants should not have the same right of removal of the county seat as a county having a less number of people, nor why a county organized after the passage of the act in question which has no county buildings should not be treated in the same class as a county without county buildings at the time the act took effect. We will take up the last proposition first.

Counsel's argument is based upon the premise that said act excludes from its operation counties organized after its passage and approval. If their premise is sound, we think their argument would be unanswerable, as such a classification would be clearly arbitrary and unreasonable, and therefore render the law special in its operation and clearly in violation of subdivision 3, chapter 69, of the constitution, which is as follows: "The legislature shall not pass local or special laws in any of the following enumerated cases; that is to say: * * * (3) Locating or changing county seats." We are entirely clear that counsel for petitioners wholly misconstrue the language employed in the act. As we read section 1, the clear legislative intent was that the same should apply to all counties, whether organized at the date of the passage of the act or thereafter organized, in which no courthouse has been constructed or is owned by such county, and which does not contain a population of more than 6,500 inhabitants. The clause, "prior to the taking effect of this act," relates to and qualifies the following clause, "has been constructed or is owned by such county." This clause was used to designate the dividing line between the two classes of counties. The legislative intent was to subject all organized counties having not to exceed 6,500 inhabitants and not having a courthouse at the date of the passage of the act to the operation of the law, even though they might thereafter, and before the institution of proceedings for the removal of their county seat, have constructed or purchased a courthouse. Without such clause the act would apply only to those counties which, at the date of the institution of county seat removal proceedings, have no courthouse. After the taking effect of said act the inhabitants of a county governed thereby are bound to take notice of the law, and hence are bound to know that proceedings for the removal of their county seat may be instituted under said act, even though they had previously thereto erected or purchased a courthouse. It is, therefore, plain that counties organized after the passage and approval of the act are included within the class of counties intended to be dealt with in said chapter.

The other objection urged to the validity of the law, that counties having more than 6,500 inhabitants according to the last census are excluded from the operation of the act, is more serious. Is there any reasonable basis for such a classification, or is it purely arbitrary? We are not without precedents in this state upon the rules so well...