State ex rel. Gibson v. Malheur County Court

• Decision Date: 03 July 1905
• Citation: 81 P. 368,46 Or. 519
• Parties: STATE ex rel. GIBSON et al. v. COUNTY COURT OF MALHEUR COUNTY et al.
• Court: Oregon Supreme Court

81 P. 368

46 Or. 519

STATE ex rel. GIBSON et al. v. COUNTY COURT OF MALHEUR COUNTY et al.

Supreme Court of Oregon

July 3, 1905

Appeal from Circuit Court, Malheur County; George E. Davis, Judge.

Mandamus by the state, on the relation of W.L. Gibson and others against the county court of the state of Oregon in and for Malheur county and others. From a judgment dismissing the writ, plaintiffs appeal. Affirmed.

This is a proceeding by mandamus to compel the county court (consisting of the county judge and two commissioners) of Malheur county to declare the result of an election alleged to have been held under what is known as the "Local Option Act" (Laws 1905, p. 41, c. 2) adopted by the people at the June election of 1904, and by appropriate order prohibit the sale of intoxicating liquors in Nyssa precinct in said county. The alternative writ, after stating that the relators are inhabitants, taxpayers, and voters of the precinct, and that the defendants are the duly elected judge and commissioners of Malheur county, and constitute the county court in and for said county, and setting out the provisions of section 10 (page 47) of the act as it relates to the opening and abstracting of the election returns by the county clerk and two justices of the peace, and the making of an order by the court declaring the result of the vote, and prohibiting the sale of intoxicants, alleges "that, as provided by said local option liquor law, an election was duly held on the first Tuesday after the first Monday of November, 1904, in the county of Malheur, state of Oregon, to determine whether intoxicating liquors should be prohibited in said county as a whole," and further, in effect, that within 10 days after said election the county clerk, taking to his assistance two justices of the peace of the county opened the votes and made an abstract thereof for the information of the county court; that said canvass and abstract showed that in the precinct of Nyssa there were 68 votes cast for prohibition, and 22 against, and that a majority were for prohibition; that it thereupon became the duty of the county court to declare the result of such vote and to make and enter an order absolutely prohibiting the sale of intoxicating liquors in said precinct until such time as the qualified voters of such district should by a majority vote declare otherwise; that said county court in due time held a special session, but refused to make any order declaring the result of such vote, or prohibiting the sale of intoxicants in such precinct, contrary to the provision of said local option law; and that the relators have no plain speedy, and adequate remedy at law. The defendants demurred to the writ on the grounds that the court was without jurisdiction, and the same did not state facts sufficient to constitute a cause for the relief demanded. The demurrer being sustained, and the plaintiffs refusing to plead further, the writ was dismissed, and plaintiffs appeal.

George F. Martin, for appellants.

George W. Hayes, for respondents.

WOLVERTON C.J. (after stating the facts).

But one question is involved herein at this time, and that is whether the writ states facts...