Russell v. Crook County Court
| Citation | 146 P. 806,75 Or. 168 |
| Parties | RUSSELL v. CROOK COUNTY COURT ET AL. |
| Decision Date | 02 March 1915 |
| Court | Supreme Court of Oregon |
Department 1.
Appeal from Circuit Court, Crook County; W. L. Bradshaw, Judge.
Writ of review by A. D. Russell against the County Court of Crook County and others, Commissioners, members thereof, to review proceedings for the creation of a new county. From a judgment dismissing the writ, petitioner appeals. Affirmed.
See also, 145 P. 653.
This was a writ of review to revise the action of the county court of Crook County whereby it ordered an election to be held for the purpose of determining the question of the formation of a new county to be known as "Jefferson county," to be formed wholly from the territory of Crook county. The petition for the election is regular and sufficient in form and the order regular upon its face. It is admitted that the vote cast was sufficient to have justified an order declaring the new county of Jefferson legally constituted, unless the objections hereinafter noted shall have rendered the proceedings void. The first objection is that upon the same day the petition for an election to determine the organization of Jefferson county was considered, and the order in question made, there was also presented a petition for an election to determine whether a new county to be known as "Deschutes county," composed of territory then lying wholly within the limits of Crook county, should be formed, which petition was duly considered, and an order made for the holding of such election. It does not appear from the record which of these orders was first considered, but it is conceded that the proposition for the creation of the latter county was defeated at the election. The claim of the petition is that the county court has no authority to submit to the voters at the same election a proposition for the formation of more than one county out of territory lying wholly within a single county; that the power of the county court to order such election was wholly exhausted when it submitted the proposition for the formation of Deschutes county; and that its orders in relation to the formation of Jefferson county were consequently void. It was also contended by appellant that chapter 10, Laws 1913, providing for the organization of new counties, is void, because it does not provide that such measure shall have a ballot title. The times fixed by law for holding a term of the county court in Crook county for the transaction of county business is the first Wednesday in January, March, May, July, September, and November. For the transaction of other business the statute provides for a term to be held on the first Monday in each month. In 1914 the first Wednesday in September was upon the 2d day of that month. On that day one commissioner appeared the other commissioner and the county judge being absent. The commissioner declared the court adjourned until next day upon which date the other commissioner appeared; the county judge still being absent. The commissioners, after transacting some business not connected with the matters at bar, adjourned court until 9 o'clock a. m. of the next day, again transacting business, and at 3 o'clock adjourned until 4 o'clock p. m. of the same day, at which time the county judge appeared and took his place on the bench. It is contended by appellant that, under sections 11 and 12 of article 7 of the Constitution, as it existed before the amendment of 1910, the county court could not be held without the presence of the county judge, and that, when he failed to appear on the second day of the term, the court, by operation of section 978, L. O. L., stood adjourned for that term. The circuit court dismissed the writ, and petitioner appeals.
M. R Elliott and N. G. Wallace, both of Prineville, for appellant. Lewis H. Irving, of Madras, W. H. Wilson, of the Dalles (Willard H. Wirtz, of Prineville, on the brief), for respondents. Claude C. McColloch, of Portland, amicus curiæ.
McBRIDE, J. (after stating the facts as above).
Much of the discussion had upon the oral argument and in the briefs was directed to the capacity of the petitioner to bring this proceeding, but, as it involves the validity of the organization of Jefferson county, we prefer to waive these technical objections and pass upon the main question on its merits.
We find nothing in the act of 1913, cited in our statement of the case, indicating that it was the intention of the Legislature that only one proposition to divide a county should be submitted at an election; and, as suggested by respondent's counsel, such a construction would leave it to the whim of the county court or to the expedition with which petitions might be circulated as to the particular measure upon which the people should have an opportunity to vote. In the case at bar it is conceded that more than 65 per cent. of the voters in the proposed new county, and more than 35 per cent. in the remainder of the county, voted in favor of the division, and that the proposal to organize Deschutes county was defeated, so that a discussion as to what might have happened had both proposals carried is purely academic here; the objection being rather to the policy or expediency of the law as it is actually found on the statute book.
There is no merit in the objection urged to the validity of chapter 10, Laws 1913. The act in question provides that there shall be a form of ballot used containing the words "For new county" and "Against new county." In the case at bar the court ordered that the clerk prepare a form of ballot for each measure containing the words "For new county (Jefferson)" and "Against new county (Jefferson)"; and as to the other proposed division the same form was employed, substituting "Deschutes" for "Jefferson." This was a substantial compliance with the law, and amply advised each voter as to the nature of the measures submitted.
The third objection to the proceedings relates to the absence of the county judge during the first two days of the term. There is no separate board of county commissioners in Crook county, and, while sitting for the transaction of county business, the judge and commissioners constitute the county court. Much stress is laid by appellant upon sections 11 and 12 of article 7 of our Constitution as it existed before the amendment of 1910. The sections are as follows:
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