State v. Board of Com'rs of Chouteau County

• Decision Date: 09 October 1911
• Citation: 117 P. 1062,43 Mont. 533
• Parties: STATE ex rel. BOGY v. BOARD OF COM'RS OF CHOUTEAU COUNTY et al.
• Court: Montana Supreme Court

117 P. 1062

43 Mont. 533

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

Supreme Court of Montana

October 9, 1911

Appeal from District Court, Lewis and Clark County; J. M. Clements Judge.

Application by the State, on the relation of L. V. Bogy, for mandamus against the Board of Commissioners of Chouteau County and O G. Skylstead and others, members thereof, to compel further proceedings in the creation of a new county. Judgment for plaintiff, and defendants appeal. Affirmed.

Albert J. Galen, Atty. Gen., and W. S. Towner, Asst. Atty. Gen., for appellants.

Gunn & Hall, for respondent.

BRANTLY C.J.

Application for mandamus. On May 22, 1911, there was presented to the board of commissioners of Chouteau county a petition asking for the creation of a new county, to be named Blaine, out of territory within the boundaries of Chouteau county described in the petition. The proceeding thus sought to be initiated is authorized by an act of the last legislative assembly providing a uniform mode for the "creation, organization and classification of new counties, for locating the county seats," and for other purposes incidental and necessary to accomplish the main purpose of the legislation. Laws 1911 c. 112, p. 205. The petition contained a statement of the facts necessary to confer jurisdiction upon the board, and to require it to proceed. It purported to bear the signatures of more than one-half of the qualified electors of the proposed new county whose names appeared on the official registry books used at the last preceding general election held therein, as required by the statute, and was properly verified by the affidavits of three qualified electors and taxpayers. By order of the board duly made notice was published fixing the hearing for June 11th. The number of signatures to the petition was 681. Prior to its formal presentation to the board, however, written requests for leave to withdraw their signatures were filed with the board by 40 of the original signers. During the course of the hearing, which was adjourned from time to time until July 1st, the board struck off the names of those who had requested to withdraw; the number of signatures being thus reduced to 641.

None of the facts stated in the petition or attached affidavits were controverted by any one. At the hearing it appeared that there were upon the official register used at the last preceding general election a total of 1,411 names. Counsel representing the petitioners introduced evidence showing that of this number many had either died or permanently removed from the county, or had registered in two different precincts. This evidence was in the form of sworn testimony of witnesses who had personal knowledge of the persons who bore the names in question, and was not controverted. At the conclusion of the hearing the board found all of the facts as stated in the petition; that all of the 641 signatures were of electors entitled to join in the petition; that of the total of 1,411 names on the register 143 did not, because of deaths, permanent removal from the county, etc., represent qualified electors; and that, deducting these names from the list, 641 represented more than one-half of the remainder. It nevertheless held the petition insufficient, and refused to proceed because it did not bear the signatures of at least one-half of the total number of 1,411. Thereupon the relator, a taxpayer and resident of the proposed county of Blaine, instituted this proceeding. The district court was of the opinion that from the facts found by the board, and stated above, the petition was sufficient, and rendered judgment directing the writ to issue. The defendants have appealed.

Section 1 of the act referred to defines the circumstances under which a new county may be created either out of territory within a county already existing or out of territory included in two or more adjoining counties. Section 2 confers the power to create the new county upon the board of commissioners of the county out of which the territory of the proposed new county is to be taken; or if it is the purpose to include in the proposed county, territory from two or more counties, upon the board of the county from which the greatest area of territory is to be taken. The proceeding must be initiated by petition. "Such petition shall be signed by at least one-half of the qualified electors of the proposed new county, whose names appear on the...