Marsden v. Harlocker

• Decision Date: 10 April 1906
• Citation: 48 Or. 90,85 P. 328
• Parties: MARSDEN v. HARLOCKER et al.
• Court: Oregon Supreme Court

85 P. 328

48 Or. 90

MARSDEN v. HARLOCKER et al.

Supreme Court of Oregon

April 10, 1906

Appeal from Circuit Court, Coos County; J.W. Hamilton, Judge.

Suit by Robert Marsden against L. Harlocker, as county judge of Coos county, and others as county commissioners thereof, to restrain the canvassing of votes cast at a local option election, and a writ of review by H.H. McPherson to have the determination of the officers of Coos county reviewed and annulled. From a judgment and from a decree in favor of defendants, plaintiffs appeal. Judgment and decree reversed.

These two cases were argued and submitted together. That of Marsden v. Harlocker is a suit in equity instituted November 22 1904, by Robert Marsden against L. Harlocker, as county judge of Coos County, and E.A. Anderson and Lloyd Spires, as county commissioners thereof, to restrain them from canvassing votes cast at, and from declaring the result of, an election held November 8, 1904, to determine whether the sale of intoxicating liquors as a beverage should be prohibited in that county, and to enjoin them from making an order prohibiting such sales. The complaint alleges, inter alia That plaintiff is a citizen, taxpayer, and qualified elector of Coos county and engaged therein in operating a brewery having about $20,000 so invested. That on September 30, 1904 there was filed in the office of the county clerk of that county a pretended petition for an election to be held November 8th of that year, to determine whether the sale of intoxicating liquors should be prohibited in such county. That the county court thereof assembled in regular session at the courthouse therein, September 7, 1904, adjourning on the 12th of that month and that at no time thereafter, prior to November 19, 1904, did such court again convene or make any order calling an election for the purpose specified. That by reason of the failure to give proper notice of the time and purpose of the proposed election, the total vote cast thereat was 1,330 in favor of, and 1,220 against, prohibition, out of a total registration of 2,843, though for presidential electors at such election there were cast 2,840 votes. That the defendants, as such county court, are threatening to declare the result of the pretended election and to make an order prohibiting the sale of intoxicating liquors in Coos county, and unless restrained from doing so, they will put their menace into execution, thereby destroying plaintiff's business, to his irreparable injury. A demurrer to the complaint, on the ground that it did not state facts sufficient to authorize the granting of the relief sought, having been sustained, and the plaintiff declining further to plead, the suit was dismissed and he appeals. McPherson v. Harlocker is a writ of review to have the decision and determination of the officers of Coos county in the matter of the election referred to reviewed, vacated, and annulled.

John S. Coke and J.M. Upton, for appellant.

E.C. Bronaugh, for respondents.

MOORE J.

It is contended by plaintiff's counsel that the failure of the county court of Coos county, as confessed by the demurrer, to order an election as prayed for in the petition therefor, rendered all the proceedings attempted to be had in pursuance thereof invalid, and, this being so, the court erred in not enjoining the defendants from invading the property rights of their client in attempting to put into execution such void proceedings. The record shows that though the county court of Coos county did not convene in regular or special session within the time alleged in the complaint, the defendants, as members thereof, at different times and in various parts of the county, individually subscribed their names to a writing purporting to call an election to be held at the time and for the purpose specified in the petition, and this memorandum having been entered in the records of such court, it is maintained by defendants' counsel that the provisions of the local option act (Laws Or.1905, p. 41, c. 2) vest the county clerk of each county with judicial authority to determine the preliminary steps necessary to confer jurisdiction of the subject-matter, and that when he has exercised this power, the calling of an election in pursuance thereof by the county court is a mere ministerial duty, requiring neither discretion nor judgment, and such order may properly be made, as in the case at bar, and therefore no error was committed as alleged.

The defendants' counsel, in support of the decree rendered herein, invoke the rule announced by a majority of the court in People ex rel. v. Brenham, 3 Cal. 477, where it was held that the time and place of an election having been prescribed by a city charter, the failure of the council to perform any duty required of them prior to an election should not defeat the choice of the electors when exercised in selecting officers for the municipality. We do not think the prevailing opinion in that case is founded in reason or supported by authority. The doctrine there promulgated has since been practically repudiated by the court making it. Thus, in People v. Porter, 6 Cal. 26, it was ruled that the proclamation of the Governor, required by statute, was necessary to the validity of a special election. In People ex rel. v. Weller, 11 Cal. 49, 70 Am.Dec. 754, it was decided that an election to fill a vacancy was invalid unless held under and in pursuance of the Governor's proclamation, which was mandatory and necessary to give notice to the electors that an election was to be held for such purpose. To the same effect are the cases of People ex rel. v. Rosborough, 14 Cal. 180, and Kenfield v. Irwin, 52 Cal. 164, in which latter case, Mr. Chief Justice Wallace, speaking for the court, says: "The time of holding an election, whether general or special, must be authoritatively designated in advance, either by law or by some means which the law has prescribed; otherwise the election is held without authority, and is ineffectual for any purpose." In all general elections, the time, place, and manner of holding which are prescribed by law, the rule is well settled that electors must take notice thereof, and as a corollary to this legal principle any requirement for the issuing of proclamations or the giving of other notice in respect to such elections must be treated as directory only. McCrary, Elections (4th Ed.) § 185; Stephens v. People ex rel., 89 Ill. 337. In the case of special elections, however, all the statutory requirements as to proclamations or other means of giving notice are considered as mandatory and must be observed in order to render the vote of the electors participating therein valid. People ex rel. v. Kerwin (Colo.App.) 51 P. 530; Demaree v. Johnson (Ind.Sup.) 50 N.E. 376; Morgan v. Gloucester City, 44 N.J.Law, 137; McHan v. Connell (Tex.App.) 15 S.W. 284. Thus, in State ex rel. v. Tucker, 32 Mo.App. 620, it was ruled that an election under a local option liquor law, which could be held on the happening of certain conditions, was special, and that all the preliminary steps prescribed should have been taken in order to give validity to the election. To the same effect, in construing local option liquor acts, see In re Sullivan (Sup.) 70 N.Y.Supp. 374; In re Powers (Sup.) 70 N.Y.Supp. 590; In re O'Hara (Sup.) 71 N.Y.Supp. 613.

The reason for this rule rests upon the doctrine that suffrage is a valuable civil right, to the exercise of which each qualified person is entitled, and he must be given or charged with notice as to when, where, and for what purpose he is to vote. If, by operation of law, the election invariably occurs at stated intervals, without any superinducing cause, except the efflux of time, the election is general, in which case all qualified persons are presumed to have knowledge thereof, and hence the failure of any officer or person upon whom the duty devolves to give a prescribed notice does not invalidate the votes cast thereat. Where, however, some local project may be initiated by petition or other means, an election to determine whether such proposition shall be adopted is special, and the electors cannot be presumed to have knowledge of an exercise of the power which calls for the necessity of exercising the electoral franchise, in which instance a compliance with all the statutory requirements in respect to the performance of the conditions precedent is mandatory in order to validate the election. The provisions of the local option act in this state (Laws Or.1905, p. 41, c. 2), so far as deemed involved herein, are as follows:

"Section 1. Whenever a petition therefor signed by not less than ten per cent of the registered voters of any county in the state *** shall be filed with the county clerk of such county in the manner in this act prescribed, the county court of such county 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. *** In determining whether any such petition contains the requisite percentage of legal voters, said percentage shall be based on the total vote in such county *** for Justice of the Supreme Court, at the last preceding general election; provided, that in no event shall more than five hundred petitioners, who are legal voters, be necessary upon any petition to require an election as...