State ex rel. Simons v. Nyquist

FULLER, J.

This appeal is from an order sustaining a general demurrer to an alternative writ of mandamus directed to respondents, the county commissioners of Gregory county, requiring such officers to submit the question of the location of the -county iseat to the voters at ithe next general election or show cause why the same should- not be done, and the governmental status of the county is disclosed by the following essential recitals of the writ: “That Gregory county is an- organized county of said state, and was • organized in the year 1898; that at -the first election for ’said county held in the month of August, 1898, there was submitted to the voters of said -county the question of a temporary location of *201 the county seat for said county, and that at said election Fairfax was, by the majority of the votes cast at said election chosen as the temporary county seat of said county;' that the commissioners of said county have failed and neglected to submit -to the voters of said county, at any general election held since the organization of -said county, the question .of the location of the county. seat for said county.” -

Conformable to sections 750- to 774, inclusive, of the Revised Political Code, this county organization was affected by means .of an election called by the governor upon the petition (of the required number of voters and the statutory notice designating the polling-places, 'providing for the temporary location of the county seat, and naming the offices to be filled by such election “until the next general election thereafter, and until their successors are elected- and qualified.” Section 753 lis as follows: “The electors at such 'election aré hereby empowered to vote for and select-a-county seát of such County temporarily by ballot, subject to be changed thereafter as provided by law; and leach voter at such election may designate on his ballot the place of his choice for county seat, and the place' having the highest number of votes polled shall be the temporary county seat.” Article 9 of the Const, requires the Legislature to' provide by general law for the location of county seats, the change of county boundaries, the organization of new counties, including their division into townships, and section -2 of the' act is as follows: “In counties already organized where the county seat has not been located by a majority vote, it shall be the duty of the county board to submit the location of the county -,seat to the electors of said county at a general election. The place receiving a majority of all votes cast at said election shall be the county seat of said county.”

The county organization effected pursuant to the statute ¡un'der consideration is permanent, but the county seat is temporary, and iso are the officers chosen, in the sense that their ‘tenure depends upon the proximity of the special election to- the next general election, and the legislative design to select such county- officers as well as the seat of county government for organization purposes only is ijuite apparent from the various provisions of the act. *202 Whenever there 'are 150 voters in any unorganized county, they may petition the Governor to form a county organization, and thereupon he is required to issue a notice of election designating therein one or more polling places in the county, the offices to be filled by ballot until the next general election, and the question of the temporary location of the county seat, subject ho be changed thereafter as provided ’by law, must ateo be submitted. As a sparsely settled community may become an organized county with but 150 voters within its boundaries, some of whom may not attend the election, ■ and all who- vote may exercise the independent right of choice as to- the temporary location of a county seat, the question may really be determined adversely to the popular will, and in any event the rapid changes usually wrought in a new county may immediately render the place selected for a temporary county seat exceedingly objectionable to a large majority of qualified electors who have never had an opportunity to vote upon the proposition. Though a majority of the votes cast at the special election held for the purpose of organizing Gregory county in August, 1898, were in favor of Fairfax, the selection was but temporary, and not determinable by a majority vote, for the reason that the statutory method pursued gives each voter the right to designate on his ballot the place of his. choice, but plainly declares that “the place having the highest number of votes polled shall be the temporary county seat.”

From the foregoing considerations and a careful examination of the statute, it seemis reasonably clear that the county seat has not been located at Fairfax by a majority vote within the meaning of the Constitution. The order sustaining the general demurrer to the alternative writ of mandamus is reversed.