State ex rel. Little v. Langlie
| Decision Date | 10 June 1896 |
| Citation | 67 N.W. 958,5 N.D. 594 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Traill County; McConnell, J.
Application by the state, on the relation of John Little and others against H. A. Langlie and others, for mandamus. From an order denying a peremptory writ, relators appeal.
Affirmed.
Crum & Hanson, for appellants.
Carmody & Leslie, for respondents.
The appeal is from a final order in special proceedings. The order denied the relator's application for a peremptory writ of mandamus. The ostensible object of the proceeding was to compel the defendants, who held various offices in Traill County, in this state, to remove their several offices from Hillsboro to Caledonia, which was at one time the county seat of that county, and which is still the county seat thereof unless such county seat has been lawfully relocated at Hillsboro. It is therefore evident that the real purpose of the relators who are taxpayers in and residents of Traill County, is to settle the question whether there has been a legal change of the county seat of that county from Caledonia to Hillsboro.
It is first urged by respondents that mandamus is not the proper remedy. On that point we are clear that the law is settled against their contention. County Seat of Linn Co., 15 Kan. 500; Bennett v Hetherington, 41 Iowa 142; Ellis v Karl, 7 Neb. 381; State v Stockwell, 7 Kan. 98; Todd v. Rustad, 43 Minn. 500, 46 N.W. 73; Calaveras Co. v. Brockway, 30 Cal. 325; State v. Commissioners of Hamilton Co., 35 Kan. 640, 11 P. 902; State v. Weld, 38 Minn. 426, 40 N.W. 561; State v. Saxton, 11 Wis. 27; State v. Avery, 14 Wis. 122; State v. Burton, 47 Kan. 44, 27 P. 141; High, Extr. Rem. § 79; Merrill, Mand. § 125; 2 High, Inj. § 1257.
But it is urged that mandamus will not lie because there is another adequate and speedy remedy. We are referred to sections 1494-1498, Comp. Laws, which provide that the validity of a county seat election may be contested in the courts by pursuing the proceedings specified in these sections. We agree with counsel that this remedy is both adequate and speedy, but the same act which created this new remedy in terms perpetuated the existing remedy of mandamus in such cases. Section 11 of this act (chapter 54, Laws 1885) being section 1499, Comp. Laws, provides that "this act shall not be construed to affect any of the remedies or rights of action or proceedings provided for in the Code of Civil Procedure." Mandamus is one of such remedies. As it could be employed, before the act of 1885 was passed, to try the validity of a county seat election, it can still be resorted to for such purpose; for this is the explicit declaration of section 1499. That any taxpaper and resident could apply for the writ in the name of the state is not open to question in this state. State v. Carey, 2 N.D. 36, 49 N.W. 164.
It is claimed that Hillsboro did not receive the necessary statutory vote to make it the county seat. Section 565, Comp. Laws, under which defendants seek to sustain the validity of the election, provides that if, upon canvassing the vote so given, it shall appear that any one place "has two-thirds of the votes polled," such place shall be the county seat. It is undisputed that Hillsboro did in fact receive two-thirds of all the votes polled on the specific question as to the relocation of the county seat, and it is also uncontroverted that it did not receive two-thirds of all votes cast at the same election; the question being voted on at the general election, at which, of course, state and county officers were voted for. The highest number of votes cast for any one officer at this election was 1,960. Hillsboro received 1,291 votes, or less than two-thirds of 1,960. In our opinion the vote for Hillsboro was sufficient. The plain meaning of the statute is that the place having two-thirds of the votes polled on the particular question of relocation shall be the county seat. There is nothing in the statute indicating that, to work a change of the county seat, any one place must receive the votes of two-thirds of all the voters of the county. Ample authority supports our decision. Armour Bros. Banking Co. v. Commissioners of Finney Co., 41 F. 321; Commissioners v. Winkley, 29 Kan. 36; Gillespie v. Palmer, 20 Wis. 544; Sanford v. Prentice, 28 Wis. 358; State v. Echols, 41 Kan. 1, 20 P. 523. The case of State v. Anderson, 26 Neb. 517, 42 N.W. 421, supports the contention of appellants' counsel. Many authorities are cited by him to sustain his contention that, to work a relocation of the county seat, under section 565, to Hillsboro, that place must have received two-thirds of all the votes cast at the election. But an examination of these cases will disclose the fact that the language of the constitutional and statutory provisions there construed was radically different from that of our statute. In those cases there was no room for construction. There was a plain statement in the law that, to carry the measure before the people, or to relocate the county seat, a majority of the electors or voters of the county or city or town must vote in favor of it. State v. Winkelmeier, 35 Mo. 103; People v. Wiant, 48 Ill. 263; People v. Brown, 11 Ill. 478; State v. Babcock, 17 Neb. 188; 22 N.W. 372; Enyart v. Trustees, 25 Ohio St. 618; Everett v. Smith, 22 Minn. 53; Taylor v. Taylor, 10 Minn. 107 (Gil. 81;) Bayard v. Klinge, 16 Minn. 249 (Gil. 221.) When a majority of the electors is spoken of, the highest number of votes cast at the election must furnish the standard for determining whether the particular measure which must have such a majority has been carried. When 1,000 votes are cast at an election, and the particular measure which must receive the votes of a majority of the electors has in its favor only 400 votes, it is obvious that it has not received the vote of the majority of such electors, although there be no votes whatever against it. But our statute contains no such language. It carefully excludes the idea that two-thirds of the electors must vote for a place to make it the county seat. When speaking of the number of signatures to the petition required, it in terms declares that such petition shall be signed by two-thirds of the qualified voters of the county. But when it specifies the vote necessary to relocate the county seat at another place, it studiously avoids the use of this explicit language which is very appropriate to express the idea that appellant's counsel contends is to be found in the statute. To our minds this fact is very significant. It discloses a purpose to avoid making it necessary that there should be a two-thirds vote of the electors of the county in favor of one place to change the county seat to such place. The language which is employed makes it apparent that the two-thirds vote required is a two-thirds vote on the particular question of the relocation of the county seat. The statute declares that, in the notice for the next general election, the voters are to be notified to designate upon their ballots the place of their choice. Then the statute continues, "And if upon canvassing the votes so given it shall appear that any one place has two-thirds of the votes polled such place shall be the county seat." The "votes so given" are the votes upon this particular question. If, upon the canvass of such votes, without any reference to any other vote at the same general election, it appears that any one place has two-thirds of the vote polled, it shall be the county seat. The "vote polled" is the vote polled upon that question. That is the only matter the statute is dealing with. It is utterly unjustifiable to assume that by these words the legislature meant the highest vote polled at the same election, no matter for what office or measure. The statute does not say "the highest vote polled at the same election for any office or measure," and we have no right to interpolate these words into the statute by construction. The general policy of the American people is to test the sufficiency of any vote by the vote on the particular question, and not by the vote on some other question. Unless the language is free from doubt, we have no right to spell out of the statute by a farfetched inference a purpose to depart from this general policy. It is to be observed that, whenever the lawmaking power of a state has desired to make the highest vote at the same election the standard, it has said so in unambiguous terms, as by requiring that there shall be a majority or two-thirds or three-fifths vote, as the case may be, of all the voters or electors of the city, town, or county, or by using equally explicit language.
It is next insisted that the election was void for the reason that the notice of election was not strictly in conformity with the statute. The statute declares that, if the board orders an election, it shall be its duty to notify the voters, in the general election notices, to designate upon their ballots at the election the place of their choice. Section 565, Comp. Laws. The portion of the notices actually given reads as follows: "Also, to vote upon the question of relocating the county seat of Traill County." This notice was a substantial compliance with the statute. It distinctly informed the voters that that question was to be voted upon, and a reference to the law would disclose the fact that each voter might, and must to make his ballot count, designate on it the place he desired to vote for as county seat. This was done by all who voted on the question, and it appears that, while the highest number of votes cast for any one office was 1,960, there was 1,882 votes cast for different places for county seat. It does...
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