State v. Board of Com'rs of Chouteau County

• Decision Date: 08 November 1911
• Citation: 118 P. 804,44 Mont. 51
• Parties: STATE ex rel. ARTHURS v. BOARD OF COM'RS OF CHOUTEAU COUNTY et al.
• Court: Montana Supreme Court

118 P. 804

44 Mont. 51

STATE ex rel. ARTHURS v. BOARD OF COM'RS OF CHOUTEAU COUNTY et al.

Supreme Court of Montana

November 8, 1911

Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.

Mandamus by the State, on the relation of John A. Arthurs, against the Board of County Commissioners of Chouteau County and others. Demurrer to alternative writ sustained, and proceeding dismissed, and relator appeals. Reversed.

F. E Stranahan, H. S. McGinley, and Walsh & Nolan, for appellant.

Albert J. Galen, Atty. Gen., W. S. Towner, Asst. Atty. Gen., and O W. McConnell, for respondents.

HOLLOWAY J.

On June 19, 1911, there was presented to the board of county commissioners of Chouteau county a petition for the creation of a new county, to be known as Hill county, from a portion of Chouteau county. So far as disclosed by this record, that petition was in due form, and met the requirements of chapter 112, Laws of 1911. The board thereupon by order designated July 17th as the time for hearing the petition and any objections thereto. Prior to the last-named date, there was filed with the board a counterpetition, asking that certain territory included within the boundaries of the proposed county of Hill be allowed to remain in Chouteau county. Omitting the formal portions, that counterpetition reads: "We, the undersigned, voters of *** in Chouteau county, Montana, do respectfully petition that townships 29 to 37 north, inclusive, and ranges 1 to 10 east, inclusive, be allowed to remain in Chouteau county, as is provided for in Substitute for Senate Bill No. 35, 1911 Session Laws." This counterpetition was signed by a large number of people, and following the signatures was this form of verification: "State of Montana, County of Chouteau--ss.: John McDowall, John Laird and John A. Arthurs, being first duly sworn, upon oath, each for himself, deposes and says: That he is a qualified elector and taxpayer within the county of Chouteau within the section of said county comprised within townships 29 to 37 north, inclusive, and ranges 1 to 10 east, inclusive; that they have each read the foregoing petitions asking that townships 29 to 37 north, inclusive, and ranges 1 to 10 east, inclusive, be allowed to remain in Chouteau county, and that they have examined the signatures thereto affixed, and that they each do believe that it is signed by at least one-half of the electors within the said territory comprised within townships 29 to 37 north, inclusive, and ranges 1 to 10 east, inclusive, in said county of Chouteau, and that the signatures thereto affixed are genuine, and that each of such persons so signing was a qualified elector of the county of Chouteau at the time of the signing thereof. Subscribed and sworn to," etc.

On July 24th, the board rejected this counterpetition, approved the petition for the creation of Hill county, ordered an election for November 20th, and on July 31st adjourned. This proceeding was then instituted by John A. Arthurs, a resident taxpayer of the territory described in the counterpetition, and a party beneficially interested, for a writ of mandate. The affidavit for the writ sets forth the history above, and alleges that the counterpetition was signed by more than 50 per cent. of the qualified electors residing within the territory described in the counterpetition; that the territory sought to be retained in Chouteau county lies contiguous to the boundary line of the proposed Hill county and the boundary line of Chouteau county, and is entirely within the old county of Chouteau. It is then alleged that the commissioners rejected the counterpetition without considering the same, claiming that it was "insufficient in material particulars and by reason of defects [therein] *** the said board was without jurisdiction to consider same." An alternative writ was issued, and upon the return the board interposed a general demurrer to the affidavit and a motion to quash the writ. The demurrer and motion were sustained, and a judgment entered, quashing the alternative writ and dismissing the proceedings. From that judgment, this appeal is prosecuted. For want of a better name, and to distinguish the petition to withdraw territory from the petition for the creation of the new county, we have designated the withdrawal petition as a counterpetition.

The proceedings for the creation of a new county under chapter 112, above, are initiated by filing with the board of county commissioners a petition, describing the territory sought to be included in the new county. Notice is then given that such petition has been filed, and a time is designated for a hearing, which time must not be more than 30 days from the date when such petition was filed. The act further provides: "At the time fixed for said hearing the board of commissioners shall proceed to hear the petitioners and any opponents and may adjourn such hearing from time to time, not exceeding fourteen days in all." And again: "On the final hearing said board of county commissioners must, upon petition of not less than fifty per cent. of the qualified electors of any territory lying within said proposed new county and contiguous to the boundary line of the said proposed new county and of the old county from which such territory is proposed to be taken, and lying entirely within a single old county, and described in said petition, asking that said territory be not included within the proposed new county, make such changes in the proposed boundaries as will exclude such territory from such new county, and shall establish and define such boundaries."

If this counterpetition meets the requirements of the statute, the board does not have any discretionary power, but must exclude the territory so sought to be withdrawn, and reform the lines of the proposed new county accordingly. So that the only question, apparently, which can arise before the board upon the counterpetition is, Does it in fact meet the requirements of the statute?

1. It is insisted that the counterpetition presented to the commissioners in this instance was and is insufficient, in that: "It does not mention the meridian or the county, or the state in which the land sought to be withdrawn is located. It fails to state that the territory is wholly within any county, or that it is contiguous to the proposed Hill county, or lies wholly within the old county." The presentation of a counterpetition under this act presupposes that an original petition has been filed for the creation of a new county, in which original petition the territory to be included in the new county is described; and such original petition had been filed with, and was before the board at the time this counterpetition was presented. The proceeding for the creation of a new county is an entirety, and includes all steps taken from the time the original petition is filed, until a copy of the resolution declaring the result of the election is presented to the Secretary of State. Chapter 112, above, has one main purpose running through it, viz., to permit the people directly interested to determine for themselves whether a new county shall be created, and what territory shall be included within the new county, if it is created, and the statute should be given a liberal construction, to the end that the will of the people affected may be carried out. The board of county commissioners is not a court. It is distinctly the people's forum, where the layman can be heard without the interposition of an attorney to represent him. The rigid rules of a court of record have no place in the proceedings of such board. When this counterpetition was presented to the board, which had before it the original petition, describing the boundaries of the proposed new county of Hill, it was the duty of the board to read the counterpetition in connection with the original petition, and determine, if it could, the wishes of the electors who sought to have eliminated certain territory which had been included within the new county, as described in the petition for its creation; and, if by any fair intendment the intention of the signers of the counterpetition could be determined, it was the duty of the board to give such intention full force and effect; otherwise the very purpose of the statute would be defeated.

It is not the province of the board to ask whether the counterpetition is drawn with all the technical niceties which might be expected from one learned in the law and accustomed to drafting legal documents; but rather it should ask whether it is possible for the board to take the counterpetition, in connection with the other papers and proceedings in the matter, and determine the will of those who signed it.

It will be presumed that the members of the board understand the method pursued by the government in its surveys of public land. The board is chargeable with knowledge of the territory included within Chouteau county as now constituted.

This court takes judicial notice of the fact that the Montana principal meridian forms the western boundary line of Chouteau county, and that the north line of township 37 north is the international boundary line, and the north line of Chouteau county; and the board will be held to know these facts also. Hoyt v. Russell, 117 U.S. 401, 6 S.Ct. 881, 29 L.Ed. 914, reversing Russell v. Hoyt, 4 Mont. 412, 2 P. 25.

Each of the persons making the verification to this counterpetition swears that he is an elector and taxpayer within Chouteau county, and within the section of said county comprising townships 29 to 37 north, inclusive, and ranges 1 to 10 east inclusive. By any fair intendment, it must be held that the counterpetition describes the territory sought to be withdrawn, as lying entirely within Chouteau...