Tinkel v. Griffin

• Citation: 68 P. 859,26 Mont. 426
• Parties: TINKEL v. GRIFFIN et al., Board of Com'rs of Flathead County.
• Decision Date: 28 April 1902
• Court: Montana Supreme Court

68 P. 859

26 Mont. 426

TINKEL v. GRIFFIN et al., Board of Com'rs of Flathead County.

Supreme Court of Montana

April 28, 1902

Appeal from district court, Flathead county; D. F. Smith, Judge.

Injunction by L. Tinkel against W. H. Griffin and others, as commissioners of Flathead county, to restrain a bond issue. From a judgment denying an interlocutory injunction, the plaintiff appeals. Affirmed.

Foot & Pomeroy, for appellant.

Jas Donovan, Atty. Gen., for respondents.

BRANTLY C.J.

At the general election held on November 6, 1900, there was submitted to the electors of Flathead county the question whether the board of commissioners of the county should issue its bonds to secure a loan of $55,000 to create a fund for the purpose of building and furnishing a county court house and jail. Upon canvassing the returns of the vote cast upon this question, the commissioners declared that the proposition to secure the loan had been approved by the requisite majority, and were proceeding to issue and sell the bonds under the authority thus assumed to have been given. Thereupon this action was brought by the plaintiff, an elector and taxpayer of the county, to enjoin further proceedings in the matter on the grounds that the question had not been submitted to the electors in the manner prescribed by the statute, and that less than the required number of those voting at the election had signified their approval. Upon the filing of the complaint, application was made to the district court for an injunction pendente lite. The application having been denied, the plaintiff appealed.

1. It is argued by counsel that the election was invalid for the reason that the ballot prepared by the county clerk did not sufficiently set forth the question to be submitted to the electors, in that it was not printed upon the ballot at length, immediately over the spaces where the electors were to indicate their preference. The form of the ballots so far as concerns the present inquiry, was as follows:

For the Loan. ----------------- Against the Loan. -----------------

It is admitted that due notice was published as required by statute; but it is insisted that the statute also requires any question submitted to the electors of the state, or of any division thereof, to be printed in full upon the ballot in the same way and in the same relative position as the name of a particular office, so that a voter may have it before him when he marks his ballot, and that, unless this requirement is observed, the election is invalid. Section 1354 of the Political Code, cited in support of this contention, provides: "Whenever the secretary of state has duly certified to the county clerk any question to be submitted to the vote of the people, the county clerk must print in the regular ballot, in such form as will enable the electors to vote upon the question so presented in the manner in this title provided. The county clerk must also prepare the necessary ballots whenever any question is required by law to be submitted to the electors of any locality, and any of the electors of the state generally, except that as to all questions submitted to the electors of a municipal corporation alone, the city clerk must prepare the necessary ballots. ***" So far as this provision refers to the printing upon the ballot of the question submitted, its meaning is not clear. As first enacted by the legislature in the Code of 1895, it read: "Whenever the secretary of state has duly certified to the county clerk any question," etc., "*** the county clerk must print on the regular ballot the question in such form as will enable the electors to vote," etc. It was amended by a subsequent act of the same session (Act March 19, 1895), from which the section as it now stands was taken. The omission from the amended act of the words "the question" was probably by inadvertence, since the active verb "print," in the present reading, is left without an object. If these words be supplied, as they doubtless should be, the sense is made clear, as far as concerns questions to be submitted to the electors of the state at the general election. It is only by inference that the provision may be extended to questions submitted to the electors of a county. For the purpose of this case, we shall concede that this would be the proper inference to be drawn from the language used, and that it would control in the absence of special provisions touching matters of local concern. There are however, special provisions with reference to the issuance of bonds by counties, enacted under the authority of the constitution, and these must be deemed controlling upon this subject. The constitution (article 13, § 5) provides: "*** No county shall incur any indebtedness or liability for any single purpose to an amount exceeding ten thousand dollars ($10,000) without the approval of a majority of the electors thereof, voting at an election to be provided by law." Under this provision the legislature might have declared that the election should be held only at the time when a general election is held, and that the ballot used should in all respects comply with the requirements with respect to questions concerning the state at large. Instead of doing this, however, it has provided for a special election to be held whenever, in the opinion of the county authorities, the necessity for an issuance of bonds arises. The provisions on this subject are found in sections 4270 to 4274, inclusive, of the Political Code. Section 4271 declares...