State v. Furnish
| Decision Date | 07 July 1913 |
| Citation | 134 P. 297,48 Mont. 28 |
| Parties | STATE EX REL. LANG v. FURNISH ET AL., COUNTY COM'RS. |
| Court | Montana Supreme Court |
Original mandamus proceeding by the State, on relation of William Lang, against Robert Furnish and others, Commissioners of Custer County. Peremptory writ granted.
Booth & Maiden, of Libby, and L. A. Conser and P. C. Cornish, both of Baker, for relator.
Loud Collins, Brown, Campbell & Wood and Tisor & McKinnon, all of Miles City, for respondents.
On April 10, 1913, a petition in due form, with signatures apparently sufficient, was presented to the board of county commissioners of Custer county, praying for the creation of a new county, to be called Fallon county. The board thereupon fixed May 1, 1913, at 10 o'clock a. m., as the time for hearing the proof of the petitions and of any opponents thereto, and directed the requisite notice to be given. On May 1st, the requisite notice having been given, the board met for the purpose of the hearing, but for cause adjourned the same to May 7th. On May 7th the board reconvened and proceeded with the hearing and concluded the same on May 13 1913, with findings to the effect: That the petition for the creation of Fallon county was sufficient in form, substance and signatories; that counter petitions had been filed on May 1st, seeking the exclusion of territory from the proposed new county, which were sufficient in form, substance, and signatories to require such exclusion; that, after excluding such territory, the valuation of all the property within the proposed new county was brought below $3,000,000; and thereupon the board denied the petition and declined to call an election.
The entire proceeding was had under the provisions of chapter 133, Session Laws of 1913, which we shall call the New Counties Act, and it is contended that the board did not give the proper legal effect to the counter petitions in granting them, because they were not signed by 50 per cent. of the qualified electors resident in the territory sought to be excluded. These counter petitions are the Wibaux petition (Exhibits 1, 5, and 6), and the Ismay petition (Exhibit 3), filed on May 1st, the date set for the hearing. The board in affirming their sufficiency proceeded upon the theory that no counter petition, protest, or withdrawal made or attempted after May 1st could be considered, and that the term "qualified electors," 50 per cent. of whom are required for the exclusion of territory under section 2 of the act, means those electors residing in the territory sought to be excluded whose names appeared on the great register at the date fixed for the hearing. So proceeding, the board declined to entertain certain additional counter petitions filed after May 1st for the exclusion of the same territory, certain protests against the creation of the new county filed after May 1st, certain representations filed after May 1st, to the effect that the persons signing the same had withdrawn their names from the counter petitions for exclusion (Exhibits 1, 3, 5, and 6), and certain offers to prove, without regard to the state of the great register on May 1st that the number of qualified electors, under the Constitution and residing in the territory sought to be excluded, was greater than double the number of those whose signatures remained upon the counter petitions for exclusion after allowing all withdrawals. And thus it is substantially agreed by all the parties hereto, the following questions are presented:
Is it the intent of section 2 of the New Counties Act that a counter petition for the exclusion of territory shall be signed by 50 per cent. of the persons residing in such territory who possess the constitutional qualifications of electors, or by 50 per cent. of the electors residing in such territory who have registered?
Should the board upon the hearing eliminate from the counter petitions for exclusion the names of those whose withdrawal was filed before the final action of the board but after the date fixed for the hearing?
May the board upon the hearing entertain a protest against the new county, or a counter petition for the exclusion of territory, filed before the final action of the board but after the date fixed for the hearing?
1. Counsel for the respondent board, citing Bergevin v. Curtz, 127 Cal. 86, 59 P. 312, ingeniously argue that by "qualified electors" 50 per cent. of whom must sign a counter petition for the exclusion of territory is meant those electors who have qualified themselves to vote by registering. They say, in effect, that a distinction is to be observed between "electors," as persons possessing the constitutional qualifications, and "qualified electors," as electors who have registered so as to be entitled to vote; and hence the board, in determining whether a counter petition for exclusion is sufficient as to signatories, has but to resort to the very simple process of consulting the great register as of the date fixed for the hearing. There is support for this construction in Hawkins et al. v. Carroll County, 50 Miss. 735, and it is attractive as furnishing a solvent for many of the difficulties incident to the administration of this rather complex law. But the construction suggested cannot be approved for several reasons. In the first place, the language employed is, apart from historical considerations, of clear and accepted meaning. Save where otherwise indicated, the term "qualified elector" means one who possesses the qualifications prescribed by the Constitution as necessary to entitle him to vote (Const. art. 9, § 2), and not simply a registered voter; for one may possess all the constitutional qualifications and still be unable to vote for want of that registration which is also authorized by the Constitution "as necessary to secure the purity of elections." White v. Reagan, 25 Ark. 622; In re House Bill 166, 9 Colo. 628, 21 P. 473; Commissioners v. People, 26 Colo. 297, 57 P. 1080. That this is the correct conclusion is manifest upon a general review of the various statutes bearing upon the subject. One example will suffice. By the great register law (chapter 113, Twelfth Session Laws), the county clerk is required to register all qualified electors. If "qualified electors" means registered electors, the county clerk is required to register the registered electors. An observation of the various sections of the statute in which the terms "electors" and "qualified electors" are employed will disclose that the use of them is indiscriminate. It is a principle long established that registration is no part of the qualifications of an elector and adds nothing to them; it is merely a method of ascertaining who the qualified electors are, in order that abuses of the elective franchise may be guarded against. Constitution Mont. art. 9, § 9; Capen v. Foster, 12 Pick. (Mass.) 485, 23 Am. Dec. 632; State v. Butts, 31 Kan. 537, 2 P. 618; Wilson v. Bartlett, 7 Idaho, 271, 62 P. 416; Hindman v. Boyd, 42 Wash. 17, 84 P. 613.
Nor do we see anything in the context or purpose of the act to warrant the inference that any other meaning was intended. The Legislature could have said that a counter petition to exclude territory should be signed by 50 per cent. of the qualified electors thereof whose names appear upon the great register, but it did not say that, and the conclusion must be that it did not mean that, unless by such a conclusion the statute is rendered inoperative or unconstitutional. But it is possible for the board to do what the statute seems to require, viz., ascertain the number of qualified electors in the territory sought to be excluded, whether registered or not, and determine whether 50 per cent. of them actually signed the petition for exclusion; and the mere fact that such an inquiry may be difficult, or that a construction of the act different from its apparent meaning would work to advantage by simplifying the inquiry, affords no reason for doing violence to the language of the act.
So, too, we may grant that for the board to do what the statute apparently requires it to do may sometimes demand qualities of a high judicial order; still the inquiry is a preliminary one for administrative purposes only. It adjudicates no private right; establishes no precedent; settles no principle. The difference between such an exercise of decisional faculty and that involved in the common everyday affairs of the board is of degree merely and not of kind. It is of the character termed "quasi judicial" and constitutes no invasion of the constitutional provisions which lodge the judicial power of the state in its courts. State ex rel. Arthurs v. Board of County Com'rs, 44 Mont. 51, 118 P. 804; State ex rel. Jacobson v. Board of Com'rs, 47 Mont. 531, 134 P. 291. In State ex rel. Bogy v. Board of County Com'rs, 43 Mont. 533, 117 P. 1062, we held that the board, in ascertaining whether the original petition for the creation of a new county is signed by one-half the number of electors whose names appeared upon the register for the preceding general election, must subtract from the whole number the names of all persons who since the election have lost their votes by death, removal, or other cause; in other words, the board must determine how many of those whose names appeared in the register for the preceding general election remain electors at the time the petition is filed. We can see no difference in kind between the duties thus imposed and those apparently imposed by the provision now under review.
There is another consideration which persuades us to the same conclusion. The language in question was brought forward into the present act from the original Leighton Act (Twelfth Session Laws, c. 112). At the time the Leighton Act was passed, the law...
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