State ex rel. Halloran v. McGrath

• Decision Date: 05 May 1937
• Docket Number: 7691.
• Citation: 67 P.2d 838,104 Mont. 490
• Parties: STATE ex rel. HALLORAN v. McGRATH.
• Court: Montana Supreme Court

67 P.2d 838

104 Mont. 490

STATE ex rel. HALLORAN v. McGRATH.

No. 7691.

Supreme Court of Montana

May 5, 1937

Original application by the State, on the relation of Joseph W Halloran, for a writ of mandate directed to Addis A. McGrath as county clerk and recorder for Silver Bow county, state of Montana, to compel respondent to permit the relator and all persons similarly situated to inspect certain petitions for referendum in possession of respondent. An alternative writ of mandate was issued, and respondent filed a motion to quash.

Peremptory writ granted, with directions.

T. B Weir, of Helena, for relator.

Carl Thompson, of Roundup, Mark Derr, of Polson, and H. A. Tyvand, of Butte, for respondent.

CHARLES B. ELWELL, District Judge (sitting in place of ANGSTMAN Justice, absent).

This is an original application by the State, on the relation of Joseph W. Halloran, for a writ of mandate directed to Addis A. McGrath, as county clerk and recorder of Silver Bow county, State of Montana, as respondent, to compel him to permit the relator, as a citizen, resident, and legal voter, and all persons similarly situated, to inspect certain petitions for referendum, or parts or portions of petitions for referendum, while in the possession of the respondent pursuant to section 101 of the Revised Codes, which section prescribes the method of carrying out the provisions of section 1 of article 5 of the Constitution of the State of Montana, relative to referendum petitions.

Upon the filing of the application and the supporting affidavit, an alternative writ of mandate was issued by this court. The respondent has filed a motion to quash, and the matter has been submitted to this court upon the above-mentioned papers and pleadings.

The application for the writ and the supporting affidavit set out, in substance, the following facts: First, that the petitioner is a citizen, resident, and legal voter of the State of Montana; second, that the respondent is the clerk and recorder of Silver Bow county, State of Montana; third, the enactment by the Twenty-fifth Legislative Assembly of the State of Montana, and the approval by the Governor, of a bill for an act known and designated as Senate Bill No. 71, which has become and now is chapter 30 of the Laws of the Twenty-fifth Legislative Assembly of the State of Montana of 1937; fourth, that since the enactment and approval of Senate Bill No. 71, proceedings have been commenced, and are now being carried on, to refer the act to the legal voters of the State for their approval or rejection at the polls, and to cause the bill to become inoperative until such time as it shall be passed upon at the polls; fifth, that the Attorney General, in April, 1937, rendered to the Secretary of State a written opinion to the effect that when such referendum petitions are presented to county clerks for the purpose of comparison and certification, as provided in section 101, supra, no person save the county clerk has the legal right to examine the petitions or the signatures thereon; sixth, that either the Attorney General, or the Secretary of State, or both, have advised the county clerks, and particularly the respondent of the opinion of the Attorney General; seventh, that respondent, as county clerk, has in his possession for the purposes set forth in section 101 of the Revised Codes of 1935 one or more of such petitions for referendum, or sections of petitions for referendum; eighth, that relator has demanded of respondent the right to inspect the petitions and sections of petitions in the office of respondent, for the purpose of ascertaining if the same are in the form required by law, and for the further purpose of ascertaining whether signatures thereon are the genuine signatures of legal voters in such county, and to that end to compare the signatures on the petitions or sections thereof with the signatures on the registration books and blanks in the office of the respondent; ninth, that respondent wrongfully and unlawfully refused to permit relator to examine the petitions or sections of petitions or the signatures thereon; tenth, that pursuant to the laws of Montana the county clerks will shortly be required to cancel all registrations of electors and burn all card indexes, registry cards, and affidavits thereto, and all copies of registration books used at any prior elections, and the means of comparison of signatures on the referendum petitions will be lost to relator; eleventh, that relator has a legal right to examine the petitions and sections of petitions and the signatures thereon, which right is being denied to him by the respondent, and that relator is without a plain, adequate, or speedy remedy at law.

The motion to quash filed by the respondent is predicated upon the following grounds: First, that the application for the writ of mandate does not state facts sufficient to entitle relator to the relief for which he prays; second, that it is not alleged in the application for the writ that the referendum petitions were either filed or recorded in the office of the county clerk and recorded, in and for the county of Silver Bow, State of Montana; third, that it does not appear from the application that the relator is a party beneficially interested.

The matter thus resolves itself into a question of law for the court. The second and third objections above mentioned are of prime importance, and if they are answered, we shall, of necessity, have found the answer to the first objection that the application does not set forth facts sufficient to entitle relator to the relief demanded.

The court must, of course, take as admitted and as true the allegations of the application and the supporting affidavit. The motion to quash performs the same duty as a general demurrer. State ex rel. State Publishing Co. v. Hogan, 22 Mont. 384, 56 P. 818.

We may first dispose of the objection that the application does not show that the relator is a party beneficially interested. The petition does show that the relator is a citizen, resident and legal voter of the State of Montana. ...