State ex rel. Durkheimer v. Grace

• Decision Date: 08 December 1890
• Citation: 20 Or. 154,25 P. 382
• Parties: STATE ex rel. DURKHEIMER et al. v. GRACE.
• Court: Oregon Supreme Court

25 P. 382

20 Or. 154

STATE ex rel. DURKHEIMER et al. v. GRACE.

Supreme Court of Oregon

December 8, 1890

Appeal from circuit court, Harney county; M.D. CLIFFORD, Judge.

This is a proceeding for a mandamus to require and direct the defendant to keep the office of county clerk in the town of Burns, the alleged county seat of Harney county. The facts in substance, are these: The petitioners allege that they are residents within the county and legal voters and tax-payers therein, etc., and that the town of Burns is situated in said county of Harney; that the defendant was and now is the duly qualified and elected county clerk of said county, and, by virtue of his official position, is now, and at all of said times has been, in the possession of the public records documents, etc., which, by the laws of the state, are records of the county clerk's office, and that the same are now and have been at all times, held and kept by him in the town of Harney, within said county; that by an act of the legislative assembly, approved February 25, 1889, the county of Harney was created one of the counties of the state of Oregon, and that among other things, it was provided that the said town of Harney should be the temporary county-seat until otherwise located by said act, which further provided that at the next general election, etc., the question of the permanent location of the county-seat of said county should be submitted to the legal voters of said county, and that the place receiving the largest majority of all the votes cast therefor should be the county-seat of said county, etc.; that the permanent location of the same was duly submitted to the legal voters, as provided by said act, and thereafter the vote cast was duly canvassed, etc.; that upon such canvass it was found that the town of Burns received 512 votes, all of which were so polled and voted by the legal voters of said county in favor of locating the county-seat at Burns, and that said 512 votes was a full majority of all the votes cast at said election on the said question of the permanent location of the county-seat of said county, etc., and that by reason thereof, the said town of Burns became the permanent county-seat of said Harney county, and is the only proper and legal place in said county for keeping the county records, files, documents, etc., of which the defendant herein now holds and has possession and custody thereof as said county clerk, and, by virtue of the act as aforesaid, the town of Burns is the only legal place in said county where the office of county clerk can be legally held, etc.; that the defendant, as such county clerk, now keeps and maintains, etc., all said records, files, etc., at the town of Harney, and conducts the office and official business there, and all of which is against the will of the legal voters of said county, and that the defendant unlawfully refuses to recognize said town of Burns as the said permanent county-seat, and unlawfully neglects and refuses to remove the records, etc., from Harney to the said town of Burns; that the defendant refuses for the reason that he says that the said town of Burns did not receive the majority of all the votes cast, etc., but your petitioners allege that the total of all the votes cast at the election upon the question of the permanent county-seat was the sum total of 1,016 votes, and no other or greater number; that, by reason of such neglect and refusal, etc., your petitioners pray, etc. Upon this petition an order was made for the issuance of a peremptory writ, from which this appeal is taken.

(Syllabus by the Court.)

When the question is one of public right, and the object of the mandamus is to enforce the performance of a public duty, it is sufficient for the relator to show that he is a citizen of the county, and as such is interested in the execution of the laws.

Where an act of the legislature, after providing that the town of Harney shall be the temporary county-seat of the county, (which was a newly-organized county,) until otherwise located,as provided by the act, proceeds: 'At the next general election the question of the location of the county-seat shall be submitted to the legal voters of the county,' -- held, that the words 'a majority of all the votes cast' refers to the 'place' receiving them, and means on 'the question of the location of the county-seat,' and not on some other question, for which votes may have been cast at such election.

Williams & Wood and Rufus Mallory, for plaintiffs.

Thornton Williams and W.W. Thayer, for defendant.

LORD, J., (after stating the facts as above.)

Two questions are presented by this record: (1) That the petitioners, as relators, do not have such an interest in the subject-matter as to authorize them to institute such a proceeding; and (2) that the petition does not state facts sufficient to constitute a cause of action, in that it does not show that the town of Burns in the election received a majority of the votes cast for a permanent county-seat as found by the canvass of such votes. Upon the first point the contention is that the fact that the petitioners are residents, legal voters, and tax-payers of Harney county, does not vest in them any particular interest or right distinct from the public at large. Our statute provides that the writ shall be allowed by the court or judge thereof, upon the petition, verified as a complaint in an action, of the party beneficially interested. Hill's Code, § 594. It has been held that a petitioner, who is a tax-payer within the district of which the defendant is assessor, is "a party beneficially interested" in having all the taxable property in the district assessed. Hyatt v. Allen, 54 Cal. 360. And it would seem, upon like principle, that the petitioners, who are voters and tax-payers within the county of which the defendant is county clerk, is "a party beneficially interested" in having the records of the county clerk's office at the county-seat of the county, and is therefore a proper party to petition for the issuance of the writ. But, if there should be any doubt on the suggested analogy to justify its issuance, the case of State v. Saxton, 11 Wis. 28, discloses that one of the reasons assigned for quashing the writ there was that the relator did not state any right which entitled him to the relief prayed for; yet the court denied the motion, holding that a proceeding by a writ of mandamus was the proper remedy to test the result of an election as to the removal of a county-seat, and to compel a sheriff or other county officer to hold or keep his office at the place to which it is alleged to have been removed. When the question is one of public right, and the object of the mandamus is to enforce the performance of a public duty, it is sufficient for the relator to show that he is a resident and citizen of the county, and as such is interested in the execution of the laws. State v. Ware, 13 Or. 380, 10 P. 885.

That the defendant, as county clerk, should keep the office of county clerk at the county-seat, as required by law, is the subject-matter in which the relator as a citizen and voter of the county has a general interest, and, in the absence of any other objection affecting the remedy by mandamus, that interest is sufficient to enable him to maintain this proceeding. When the law appoints a place for a county-seat and fixes its officers thereat, it is a matter of public right in which all the citizens of the county are interested, and the officers should be kept at that place for the transaction of the public business. Such being the case the relators, as residents, voters, and tax-payers, are parties "beneficially interested" in the excution of the laws, and as such are entitled to enforce the performance of duty which devolves upon such officers to keep their offices at the county-seat by the writ...