Wells v. Taylor

• Decision Date: 31 January 1884
• Citation: 5 Mont. 202
• Parties: WELLS and others v. TAYLOR and others.
• Court: Montana Supreme Court

5 Mont. 202

WELLS and others

v.TAYLOR and others.

Supreme Court of the Territory of Montana.

January Term, 1884.

Where a statute authorizes a special election for a change of county seat, but provides no method of holding it, the election is good if conducted according to the general law on the subject, whether the general law be or be not referred to in the special statute, and it cannot be attacked on the ground of the incompleteness of such statute, there being no charge of fraud or of illegal voting.

If there is a fair vote and an honest count, the qualified voters must not be disfranchised by having the election declared void because the officers conducting the same were not duly sworn or chosen, or were not qualified for the office, or for any technical irregularity.

The offer of a public building if the county seat is changed, is in no sense bribery; the building is a benefit to the public and not to individuals, and the party to be influenced is a whole county.

The county seat was changed by the election, and the failure of the county commissioners to order the removal of the books of offices to the newly designated town cannot defeat the result of the election; and if the officers effect the removal on their own motion, they cannot be compelled by mandamus to return and await the order which the statute required the commissioners to give.

Erastus D. Edgerton and Chumasero & Chadwick, for petitioners.

W. F. Sanders and E. W. Toole, for respondents.

WADE, C. J.

This is an application filed in this court by Frank Wells, Henry B. Barkley, Edwin M. Bachelor, P. B. Clark, and Charles Furgerson, citizens of Radersburg, Jefferson county, for a writ of mandate against Joel M. D. Taylor, clerk and recorder; John McDermitt, sheriff; Edward McSorley, treasurer; and Davie G. Warner, probate judge, officers of said Jefferson county, residing and exercising the functions of their respective offices at Boulder City, in said county, to compel said officers to return the books, records, archives, papers, and effects of their several offices to Radersburg, which place the petitioners aver is the legal county seat of Jefferson county, and to require said officers to reside in and hold their offices at said Radersburg.

The questions to be determined arise upon a demurrer to the application of petitioners, no writ having issued in pursuance of the prayer of the petitioners, and hence no answer having been filed by the respondents. A brief statement of the facts as they appear in the application will be necessary in order to present the questions to be decided:

The legislative assembly of the territory, at its thirteenth regular session, 1883, passed an act authorizing the citizens of Jefferson county to vote upon the question of removing the county seat of said county from Radersburg to Boulder City, and providing the notice to be given, and the day when such election should be held. The act further provided that the county commissioners should appoint judges and clerks of said election in the several precincts, as now established, who shall qualify as other clerks and judges of election, and that said judges and clerks should receive, count, and make return of all legal ballots, “in the manner and at the time as is provided in this bill.” Also, that the canvassing board shall, within 20 days after such election, make an abstract of all the votes cast, and that the clerk of the board shall make out an abstract of the votes cast, and deliver one copy thereof to the secretary of the territory, and another to the clerk and recorder of the county; that if the vote is in favor of changing the county seat, the commissioners shall, within six months from the date of the election, cause the books, records, papers, and effects of the county to be removed to the place designated as the county seat; and that the several county officers thereafter shall hold and keep all county books, papers, and records, and their offices, at such new county seat.

The application of petitioners charges that this act of the legislative assembly is void, for the reason that it requires the county commissioners to appoint judges and clerks of said election in the several precincts, but did not provide the number or qualifications of such judges and clerks; and because the act provided that said judges and clerks should receive, count, and make return of all the legal ballots in the manner and at the time provided in the act, while the act provided neither manner or time for receiving, counting, and making return of said ballots; and for the reason that said act did not provide for a canvassing board to canvass said returns. The application further charges that the county commissioners, in pursuance of said act, appointed judges and clerks for the several precincts as then established, but that many of the persons so appointed, failed, neglected, or refused to serve as such, whereupon other persons assumed to act as such judges and clerks, and counted the ballots, and made and signed the returns thereof. The application specifies the particular precincts in which other persons than those appointed by the commissioners acted as judges and clerks of said election. The application further charges that the chairman of the board of county commissioners, the clerk and recorder, and the probate judge of said county, acted as a canvassing board in regard to said election, and made an abstract of the vote and filed the same as provided in said act. Said application further charges that prior to said election there was presented an offer to the voters of said county in the form of a bond in the penal sum of $10,000, conditioned that if a majority of the votes cast at said election were in favor of changing said county seat to Boulder City, and if it was so determined, then the principals in the bond agreed to furnish the county of Jefferson suitable buildings in Boulder City for a court-room, county offices, etc., free of any and all expense to said county for the period of five years; said principals covenanting and agreeing that the building for this purpose so to be provided should be of stone, (giving the dimensions and number and size of the different rooms,) and properly furnished for the purposesaforesaid. The application further alleges that the county commissioners made no order causing the removal of the books, records, etc., of said county from Radersburg to Boulder City, but that the county officers aforesaid, on or about the twelfth day of October, 1883, removed from said Radersburg to Boulder City, taking with them the books, records, papers, and effects belonging to their respective offices, and are now exercising the functions of their offices at the last-named place, and refuse to return their said offices, and the records and effects belonging thereto, to said Radersburg, to the inconvenience, damage, and expense of petitioners, which is specified by proper averment.

1. There is no allegation of fraud by the petitioners. An abstract of the vote of the county at the different precincts is attached to and made a part of the application, showing that a majority of the votes as cast were in favor of changing the county seat from Radersburg to Boulder City, and there is nothing whatever in the application showing or tending to show that any illegal or fraudulent votes were cast at said election. The purpose of this act of the legislative assembly was to give to the qualified electors of Jefferson county an opportunity to express their wishes upon the question of changing their county seat from Radersburg to Boulder City, in said county. In pursuance of this purpose an election was held at the time appointed in the act. We must take it for granted that there was not a fraudulent or illegal vote cast at the election, for the petitioners charge no fraud or illegality in that regard. The vote, then, contained in the abstract attached to the application of petitioners for the writ is an honest expression of the electors upon the question submitted. But the petitioners say that the vote was not counted or canvassed by the proper officers; that no officers for that purpose were provided in the act; and therefore, though the vote is an honest and fair expression of the wishes of the electors of the county, that the act authorizing the vote, and the election in pursuance thereof, are void. The act does not specify the number of judges that the commissioners shall appoint at each precinct, but does provide that the commissioners shall appoint the judges and clerks, who shall qualify as other judges and clerks of election, and it does not specify who shall compose the canvassing board, but it does require the canvassing board to make the abstract. Who are the judges of elections? The general law specifies who they are, their number and qualifications, and how a vacancy shall be filled if any person appointed by the commissioners shall fail to serve; and, in the absence of any allegations to the contrary, the commissioners having followed the general law as to the number of judges appointed, we must presume that in filling vacancies as to judges and clerks the method prescribed by the general law was followed. In providing that the judges and clerks shall qualify, as other judges and clerks of election, the special act refers to the general law, and it is not too much to presume that the phrase “the judges” in the special act means the same as “the judges” in the general act, and that in appointing judges under the special act the same number should be appointed as is provided in the general election law.

The canvassing board is a board provided by the general election law. It was already in existence when this special act became a law. It was not necessary that the special act specify of whom this board should be composed, for the general law had already made such specification. If the special act had provided that the board of county...