State ex inf. Boylan v. Parkey

• Decision Date: 08 June 1920
• Citation: 96 Or. 499,190 P. 319
• Parties: STATE EX INF. BOYLAN, DIST. ATTY., v. PARKEY ET AL.
• Court: Oregon Supreme Court

190 P. 319

96 Or. 499

STATE EX INF. BOYLAN, DIST. ATTY., v. PARKEY ET AL.

Supreme Court of Oregon

June 8, 1920

In Banc.

Original action in the nature of a quo warranto by the State of Oregon, on information of Bert C. Boylan, District Attorney for Jefferson County, against Alfred E. Parkey and others. Action dismissed.

This is an original action in the nature of quo warranto to determine the right of the defendants to act as commissioners of Farmers' Domestic Water District. Upon the petition of the district attorney an alternative writ of mandamus issued out of this court, directing the defendants to abandon their claims to the office of commissioners, or to show cause why they should not. The defendants demurred to the complaint and the cause is now submitted thereon.

Lewis H. Irving, of Madras, for plaintiff.

W. A Johnson, of Portland, for defendants.

Arthur A. Murphy, of Portland, amicus curiæ.

BENSON, J.

The county court of Jefferson county, upon a proper and sufficient petition, ordered an election to be held in certain specified territory in such county, upon the question of incorporating a municipal district for the purpose of supplying the inhabitants with water for domestic purposes the proceedings being had under and by virtue of the provisions of chapter 346 of the General Laws of Oregon for 1917. The election was held, resulting in a majority vote in favor of the organization, and choosing these defendants as the commissioners of the district so organized. Plaintiff attacks the validity of the election upon the ground that the form of ballot used does not comply with the requirements of the statute. The accuracy of the ballot is challenged in two particulars: (1) That it did not contain the ballot title required by the statute; and (2) that the ballot numbers used were not those specified in the act.

Section 3 of the act under which the election was held contains the following:

"The ballot title to be used at such specified election shall read as follows:

"Shall that portion of _____ county, state of Oregon, * * * be incorporated as a municipal corporation for the purpose of obtaining water for domestic use for its inhabitants and to be known as _____ (here insert proposed name) in accordance with the provisions of that certain act of the legislative assembly of the state of Oregon, passed at its regular session held in 1917, entitled 'An act to authorize communities to incorporate for the purpose of supplying their inhabitants with water for domestic purposes to issue, sell and dispose of bonds and other securities levy taxes and have the right of eminent domain for such purpose?"

It further provides that--

"The affirmative of the measure on the official ballot shall be numbered 300 and the negative shall be numbered 301, both in numerals."

The preparation of such ballot is by the act intrusted to the county clerk. That officer, in the present instance, appears to have performed his part of the work without any serious consideration of the statute, since, instead of using the prescribed ballot title, there was substituted this "For incorporation of Farmers' Domestic Water District Vote '...