Lippincott v. W. A. Carpenter

• Decision Date: 24 October 1912
• Citation: 127 P. 557,22 Idaho 675
• Parties: J. A. LIPPINCOTT et al., Respondents, v. W. A. CARPENTER, Appellant
• Court: Idaho Supreme Court

127 P. 557

22 Idaho 675

J. A. LIPPINCOTT et al., Respondents, v. W. A. CARPENTER, Appellant

Supreme Court of Idaho

October 24, 1912

REMOVAL OF COUNTY SEAT-STATUTORY AND CONSTITUTIONAL CONSTRUCTION-RULE OF EVIDENCE-PETITION-RIGHT TO WITHDRAW NAMES.

(Syllabus by the court.)

1. Under the provisions of sec. 2, art. 18 of the constitution of Idaho, the petition for a removal of a county seat must be signed by a majority of the qualified electors of the county at the time the petition is filed.

2. By the provisions of sec. 467, Rev. Codes, a petition for a removal of a county seat must be signed by a number of legal voters of such county equal in number to a majority of all votes cast at the last general election, and that provision of the law provides a rule of evidence for establishing a prima facie case, and the court upon that showing would be justified in ordering an election, unless it was shown to the court that the number of qualified electors in the county had increased since the last general election, and in that case the petition must contain a majority of the qualified voters as shown by the legal evidence produced on the hearing of such petition.

3. Under the provisions of the constitution and statute, more than one application may be made for an order of election for the removal of a county seat, and upon the hearing it is the duty of the court to consider all of such petitions at the same hearing and to determine which, if either, contains a majority of the qualified electors of the county.

4. Withdrawals from the petition for the removal of a county seat may be made at any time prior to the submission of the petition to the court.

APPEAL from the District Court of the Third Judicial District for Boise County. Hon. C. P. McCarthy, Judge.

Appeal from an order of the district court ordering an election for the removal of the county seat of Boise county from Idaho City to Weaverly. Judgment ordering an election. Reversed.

Judgment of the trial court modified. Costs awarded to appellants.

Cavanah Blake & MacLane, for Appellant.

A requirement of a majority of the electors in favor of a petition contemplates that there can be but one petition. (Streissguth v. Geib, 67 Minn. 360, 69 N.W. 1097; Evenson v. O'Brien, 106 Minn. 125, 118 N.W. 366; State ex rel. Reed v. Garrett, 76 Mo.App. 295; State ex rel. Andrews v. Boyden, 21 S.D. 6, 108 N.W. 897, 15 Ann Cas. 1122.)

A construction of a statute which will occasion public mischief or inconvenience ought to be avoided, unless the language employed will not permit of a different interpretation. (Sutherland on Stat. Const., sec. 323.)

The requirement of a majority of signatures would obviously exclude the possibility of two petitions, as there could not be two majorities each in favor of different towns. (Currie v. Paulson, 43 Minn. 411, 45 N.W. 855.)

The following cases indicate that from the form of ballot but one election can be held: Peck v. Board of Supervisors, 102 Mich. 346, 60 N.W. 985; Hawes v. Miller, 56 Iowa 395, 9 N.W. 307.

Withdrawals from the petition after the same has been filed are not authorized. (State ex rel. Andrews v. Boyden, 15 Ann. Cas. 1122, note; Evenson v. O'Brien, supra; Wilson v. Bartlett, 7 Idaho 271, 62 P. 416.)

If anyone who signs can withdraw after filing the petition, a few persons may sign the petition with the concerted intention between them of withdrawing after the same has been filed and thus defeat it. It hardly seems fair that in matters exciting as much acrimony as county seat removals such practice should be permitted, and it would hardly seem that the statute would permit it when it has so carefully guarded these proceedings in every respect.

Karl Paine, for Respondents.

There cannot be two petitions for the removal of a county seat, each of which is signed by a majority of the qualified electors of the county. (State v. Boyden, 21 S.D. 6, 108 N.W. 897, 15 Ann. Cas. 1122.)

That portion of sec. 457, Idaho Rev. Codes, which provides for a petition to be signed by a number of legal voters equal in number to a majority of all votes cast at the last general election, contravenes that portion of art. 18, sec. 2 of the constitution providing that no county seat shall be removed unless upon petition of a majority of the qualified electors of the county. (Lindsay v. Allen, 112 Tenn. 637, 82 S.W. 171; 5 Cent. Dig., tit. "Counties," sec. 35, subd. 2.)

If the statute is valid, the lower court was right in granting the prayer of both petitions, as each petition was signed by a number of legal voters equal in number to a majority of all votes cast at the last general election.

A choice between the two petitions in this case would necessarily be arbitrary, and therefore indefensible.

Within certain limits the legislature has power to prescribe what shall be evidence, prima facie or conclusive, of any fact, but under the guise of establishing rules of evidence it cannot override the restrictions of the constitution or make anything conclusive evidence of the number of qualified electors in the county which, in the nature of things, has no connection with that fact and does not reasonably tend to prove it. (County Seat of Linn Co., 15 Kan. 500.)

With respect to the request of certain persons to withdraw their names from the Montour petition, see State ex rel. Andrews v. Boyden et al., supra; 5 Dec. Dig., tit. "Counties," sec. 34 (3); 13 Cent. Dig., tit. "Counties," sec. 36.

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This is an appeal from an order of the district court of Boise county ordering an election on the question of removing the county seat of said county from Idaho City to Weaverly. The order or judgment was made on August 20, 1912, the first day of the August term of said court for Boise county, but the judgment was not filed or entered until the 11th day of October, 1912. There is no dispute as to the facts in the case. The facts are substantially as follows:

On the 28th day of March, 1912, L. Knowlton and W. A. Carpenter, qualified electors of Boise county residing at Sweet, posted and published notice of intention to circulate a petition praying for the removal of the county seat from Idaho City to Montour, and more than ten days afterward commenced circulating a petition for that purpose. The proper posting and publication of said notice as required by the statutes were made and proved on the trial, and out of a total maximum vote of 1670 at the general election of 1910, said parties secured signers to the petition to the number of 1317, 102 of which signers failed to give their postoffice address or precinct, and so under the statute could not be counted. By omitting them and also omitting the names of 234 signers who subsequently signed the petition for the removal of said county seat to Weaverly, which petition will be referred to hereafter, a balance of 979 was left against whom no objection could be made. Said first-mentioned petition was filed with the clerk on July 17, 1912, and remained on file there without any objection being taken thereto or contest being made against the same, either prior to or at the meeting of the court on August 20th. Pending these proceedings with respect to the Montour petition, one Martin Foss, a resident of Horseshoe Bend, said county, on the 30th day of March, 1912, published and posted notice of intention to circulate a petition for the removal of said county seat to Weaverly. Said notice was properly posted and published, as required by law, and proof of that fact was made on August 20, 1912. Said Weaverly petition was signed by 984 qualified voters, including the names of 234 voters who had previously signed the petition for the removal of said county seat to Montour, but who also filed with the Weaverly petition a petition asking for the withdrawal of their names from the Montour petition. These names so signed to the Montour petition, if counted on the Weaverly petition, were equal to more than one-half of the number of the votes cast at the preceding general election, but if not counted on said Weaverly petition left it nearly 100 short of the required number based on the number of votes cast at the last general election. The written form of withdrawal used by most of the signers is set forth in the transcript, and was attached to the Weaverly petition and not with the Montour petition, and there was no application on file with the latter petition to have the duplicate names withdrawn. The Weaverly petition was filed with the clerk of said court on July 29, 1912, more than ten days after the Montour petition was filed. On August 9, 1912, motions to dismiss, to strike, contest and remonstrate against the Montour petition were filed in said matter. Both of said petitions came up for hearing on the first day of the August term of said court. The Montour petition being first on file was first presented to the court, and no objection, contest or remonstrance was made in opposition thereto, and oral and documentary testimony in support thereof was submitted to the court. Thereupon the said petition was granted, and it was ordered by the court that an election on the Montour petition be held and that ballots be printed in the following form:

"For Removal of the County) No.

Seat to Montour ) Yes."

The court thereupon took up the Weaverly petition and the various motions, contests and remonstrances were presented and overruled by the court, and the court found the facts substantially as above stated, and held that those who...