Wilson v. Bartlett

• Decision Date: 11 September 1900
• Parties: WILSON v. BARTLETT
• Court: Idaho Supreme Court

62 P. 416

7 Idaho 271

WILSON v. BARTLETT

Supreme Court of Idaho

September 11, 1900

REMOVAL OF COUNTY SEAT-PETITION.-A qualified elector to sign a petition for the removal of a county seat under the provisions of section 2, article 18 of the constitution, is one who possesses all of the qualifications enumerated in section 2, article 6 of the constitution.

QUALIFIED ELECTOR-REGISTRATION.-By the provisions of said section 2 article 6, registration is not one of the substantive qualifications of an elector. Registration is simply a regulation of the right of suffrage and is prima facie evidence of the right to vote. The term "elector" and "qualified elector" are used interchangeably in the constitution and laws of the state. The authority to fix the rule by which a majority of the qualified electors may be ascertained is with the legislature.

ABBREVIATION.-The word "ditto" and its contractions have a well-defined meaning.

AFFIDAVIT OF CONTEST.-The affidavit of a contestant in a county seat removal case must show that the list of names that he desires to contest, if stricken from the petition, would reduce the number of names on the petition to less than the number required by law to be on such petition. If it does not, the trial court ought to deny the contest and may strike the affidavit from its files.

PRIMA FACIE CASE.-When a petition is presented to the court for the removal of a county seat, and all of the signers to such petition state, over their signatures, that they are qualified electors of such county, a prima facie case is made, and no further evidence of the qualification of such signers is required, unless a contestant appears and files a proper affidavit of contest as required by law.

(Syllabus by the court.)

APPEAL from District Court, Fremont County.

Judgment affirmed, with costs of this appeal in favor of respondents.

Caleb Jones and Richards & Varian, for Appellant.

The constitution forbids the removal of a county seat except upon petition of a majority of the qualified electors of the county, and requires a two-thirds vote of the qualified electors to carry the election therefor. For such elections the qualifications of voters as to residence is extended to ninety days. (Const., art. 18, sec. 2.) The statute requires the petition for removal to be signed by legal voters, and the signers must be legal voters at general elections. Of course, the legislature could not have intended to annul any provisions of the constitution, and the term "legal voter," as used in the statute, must mean "qualified elector," as used in the constitution. The language of the constitution is clear and explicit. It is: "Except as in this article otherwise provided, every citizen of the United States, twenty-one years old, who has actually resided in this state or territory for six months and in the county where he offers to vote thirty days, next preceding the day of election, if registered as provided by law, is a qualified elector." (As amended, art. 6, sec 2; Bew v. State, 71 Miss. 1, 13 So. 868; Mew v. Railway Co., 55 S.C. 90, 32 S.E. 828; Bourland v. Hildreth, 26 Cal. 180; Potter's Dwarris' Statutes, ed. 1885, p. 143.) The court erred in refusing to receive or consider the withdrawal in writing, offered by one hundred and forty-eight of the signers upon the original petition, and in refusing to strike from the petition the names of such persons. (State v. Eggleston, 34 Kan. 714, 10 P. 3; Slingerland v. Norton, 59 Minn. 351, 61 N.W. 322; State v. Nemaha County, 10 Neb. 32, 4 N.W. 373; State v. Polk County, 88 Wis. 355, 60 N.W. 266; LaLondi v. Barron County, 80 Wis. 380, 49 N.W. 960.)

Dietrich, Chalmers & Stevens, for Respondents.

What is the purpose of registration? Clearly, not "once registered always registered." Registration is not indeterminate in the period of its effectual existence. A registration is for one particular purpose--namely, to furnish prima facie evidence of the individual's qualifications to vote at a certain fixed ensuing election, and it is only prima facie evidence. (Idaho Election Law, Laws 1899, p. 41, sec. 35; McCrary on Elections, sec. 275; Preston v. Culbertson, 58 Cal. 208.) An election to determine the question of the removal of a county seat is not a state, county, city or town election within the meaning of the registry law. (Paine on Elections, secs. 305, 357; Boren v. Smith, 47 Ill. 485; People v. Supervisors, 51 Ill. 191; Supervisors v. Davis, 63 Ill. 405.) "Qualified elector" means a person who is legally qualified to vote, while a "legal voter" means a qualified elector who does in fact vote. (Black's Law Dictionary, 973, citing Sanford v. Prentice, 28 Wis. 358.)

SULLIVAN, J. Huston, C. J., concurs. QUARLES, J., dissent.

OPINION

SULLIVAN, J.

This is an appeal from a decision of the district court of Fremont county--from an order or judgment submitting to the legal voters of said county the question whether the county seat of said county should be removed from St. Anthony to Rexburg. It appears from the record: That a petition for the removal of said county seat, containing two thousand three hundred and forty-two signatures, was duly filed in the office of the clerk of said district court in and for said county, as provided by section 106 of an act of the legislature providing for the holding of general and special elections, etc. (See Laws 1899, p. 33.) That, under the provisions of section 109 of said act, Charles P. Bartlett filed his affidavit of contest, contesting the right of certain signers of said petition to sign the same, and based his right of contest on the two following grounds, to wit: "1. That all those persons whose names appear on said list from page 1 to page 23, inclusive, were not at the time of signing said petition, nor never have been, registered as is required by law. 2. That each and all of the names appearing on pages 24 to 26, inclusive, of said list, are the names of persons who did not write or cause to be written opposite their said names the name of the precinct in which they then resided, as is required by law." The transcript shows that the first specification of said affidavit contained 888 names, and the second contained 139 names. A motion was made by counsel for the petitioners, who are respondents here, to strike said affidavit from the files for the following reasons, to wit: "1. That the matters in said writing, protest, or remonstrance upon which the same appears to be based are each and all redundant, irrelevant, frivolous, and the same contains no legal objection, or ground of objection whatever, to said petition for removal, or the form or substance thereof, or to the qualification or sufficiency of the signers thereof; that the said so-called written protest or remonstrance was not filed with the clerk of said court, or any court, within the time allowed by law." Thereafter said motion was heard by the court, and denied in so far as the same was made upon the ground that the affidavit of contest was not filed in time; and it sustained said motion upon the ground that the matters set up in the affidavit were insufficient in law to authorize the court to strike out the names of the petitioners referred to in said affidavit and list filed therewith, and thereupon it was ordered that said affidavit and list be stricken from the files. Thereupon counsel for contestant presented and asked leave to file the written request made and signed by one hundred and forty-eight persons who had signed said petition to withdraw their names from said petition. Counsel for the petitioners objected to the receipt and filing of said withdrawals on the ground that they were not made in time, and that it was incompetent, irrelevant, and immaterial for such persons to withdraw their names from said petition; and the court sustained the objection, and refused to permit such withdrawals to be filed. Thereupon the contestant, through his counsel, moved the court for leave to appear by counsel in opposition to the proofs to be offered in support of the petition, and to cross-examine witnesses sworn in support thereof. Under the objection of counsel for the petitioners, the court denied said motion. After hearing certain testimony, the court made its finding of facts and conclusions of law, and judgment was entered authorizing the election prayed for in said petition. Among other facts, the court found that at the last general election held in said county the greatest number of votes cast for any officer (state or county) were cast for sheriff, and that the total number of votes cast for sheriff at that election was two thousand five hundred and eighty, and that a majority of that number was one thousand two ninety-one, and that, owing to the great distance necessary to be traveled, and long time to be consumed, in procuring the attendance of witnesses, no proof was offered or taken as to the qualification of the signers, or the genuineness of the signatures, upon the petition of those signing it from six precincts in said county, and containing six hundred and thirty-six names. And the court made no finding as to said names, as it concluded it was unnecessary to make any finding thereon, for the reason that after deducting said six hundred and thirty-six names from the total number of names on said petition, and also deducting therefrom thirty names that the court found were not properly on said petition, the petition contained one thousand six hundred and seventy-three names, or three hundred and eighty-two signatures more than a majority of the votes cast for sheriff in 1898, at the last general election.

Five errors are assigned. The first is that the court erred in striking appellant's affidavit and list of names contested from the files. The...