Territory of Arizona v. Board of Supervisors of Mohave County

• Decision Date: 27 January 1887
• Docket Number: Civil 187
• Citation: 12 P. 730,2 Ariz. 248
• Parties: TERRITORY OF ARIZONA, EX REL. CHARLES E. SHERMAN, Petitioner, v. BOARD OF SUPERVISORS OF MOHAVE COUNTY et al., Respondents
• Court: Arizona Supreme Court

12 P. 730

2 Ariz. 248

TERRITORY OF ARIZONA, EX REL. CHARLES E. SHERMAN, Petitioner, v. BOARD OF SUPERVISORS OF MOHAVE COUNTY et al., Respondents

Civil No. 187

Supreme Court of Arizona

January 27, 1887

MANDAMUS.

Petition denied.

E. M Sanford, for Petitioner.

Rush Wells & Howard, for Respondents.

Barnes, J. Porter, J., concurs.

OPINION

The facts are stated in the opinion.

BARNES, J.--

By statute approved February 25, 1885, it was enacted that the qualified voters of Mohave county should, at the next general election, designate by ballot the locality for the county-seat of said county; that at said election any voter might designate upon his ballot a place for such county-seat and that all such votes should be received, counted, and returned as other votes; and that the place receiving the highest number of votes should be the county-seat. All acts in conflict with that act are hereby repealed.

The petition, on the relation of Charles E. Sherman, alleges that at the last general election votes were cast in Mohave county on the question of the location of the county-seat, and that the board of canvassers canvassed the votes cast, and declared that Kingman had received a majority, and that thereupon the county officers--the sheriff, county judge, and others--removed their offices and the records of the county to Kingman. The petition alleges that many votes were cast by persons not citizens, and therefore not legal voters; that many votes were cast by persons who resided in precincts other than where the votes were cast, and so were illegal votes. Many irregularities in making up, certifying, and in transmitting the returns are alleged. The petition asks for a writ of mandamus requiring the board of canvassers to again canvass the returns of said election. It also asks the court to inquire, by issues prepared and sent down to the district court, into the legality of the votes alleged to be illegal, and to purge the returns of said election of all illegal votes and irregularities before the board of canvassers be required to canvass such returns. In short, it is sought by this proceeding to contest this election.

One question we must dispose of at the threshold. It has been urged with great force and ability that the law authorizing the election is invalid, in that it attempts to delegate legislative powers to the voters of Mohave county. The location of a county-seat should be determined by the people of a county. Their interests and convenience should alone be consulted. So, in most of the states, laws have been enacted by which a vote of the people should determine the question. No case has been cited that decides such laws to be invalid. They have been acquiesced in by courts and the law-makers too long now to question their validity. The case of Calaveras Co. v. Brockway, 30 Cal. 325, treats such a law as valid. So do the cases of State v. Stearns, 11 Neb. 104, 7 N.W. 743; Boren v. Smith, 47 Ill. 482. It has been held that where the fact of an enactment becoming a law is made to depend upon a popular vote, the law is invalid. Barto v. Himrod, 8 N.Y. 483, 59 Am. Dec. 506, where a school law made dependent upon the adoption by the people, and Ex parte Wall, 48 Cal. 279, 17 Am. Rep. 425, where a prohibitory law made dependent upon adoption by vote, are cases that held such laws to be void.

Much authority may be found pro and con upon this vexed question, yet the tendency of authority and practice is evidently towards a recognition of their validity. Fence laws, stock laws, liquor laws, in fact a great number of local option laws, have been enacted and sustained by the courts. But the law in this case is not made dependent upon a vote. It enacts that the county-seat shall be where the voters designate, and repeals all laws in conflict therewith. We are compelled to hold that the law is valid.

The next question to be considered is whether mandamus is the proper remedy. The purpose of this remedy is to require public officers to perform their official duties when, by inaction or misconduct, they refuse to act. When the duty is purely ministerial, the court may direct how the duty shall be performed. When, however, the officer has any discretion or judicial power, the court can only direct him to act, but not how he shall act. Had the board of canvassers refused to canvass the votes cast at the election on the location of the county-seat, this remedy might have been invoked to require such canvass. Had the county officers failed to remove, the court would have had the power to direct the removal. But the petition shows that the canvassers performed their duty by canvassing the votes, and the officers...