McWhirter v. Brainard

By the Court, Shattuck, J.:

The objections to the decree of the court below are embraced in two propositions:

1st. That the pleadings presented issues of fact that ought to have been, but were not, tried.

2d. That the act of the Legislative Assembly in question was unconstitutional and void.

These propositions may be considered in the inverse order.

*429 On the second proposition, the appellants submit tbat tbe subject matter of said act is not expressed in tbe title, as required by § 20, Art. 4 of tbe State Constitution. Tbis point was directly before tbis Court at tbe September Term, 1869, in tbe case of Simpson et al. v. Bailey et al., relating to the county seat of Umatilla County.

Tbis case, so far as tbis point is involved, is so like that of Simpson v. Bailey, that we deem it settled by tbe decision in tbe latter case, and do not find cause to disturb tbe ruling; consequently, tbis objection by tbe appellant is not well taken.

Again, tbe appellants object tbat tbe Legislature cannot create tbe emergency in tbe act itself; but allege tbat tbe emergency, to make a law take effect by virtue thereof, must be one-existing independent of tbe act.

We do not tbink tbis act is open to tbe objection here made. Tbe Legislature does not pretend to create tbe emergency; it only declares tbat certain existing facts are an emergency. Tbe object of tbe Legislative Assembly appears to bave been to submit tbis question of location of tbe county seat to tbe people of Union County, at tbe Presidential election in 1872, in order to save tbe voters tbe time and expense of a special election; and tbe facts were, tbat tbis Presidential election was to be held before tbe act could take effect under tbe ninety-day limit of the Constitution, and tbat a special election would cause a great expenditure of time and money. Tbis tbe Legislature decided to be an emergency authorizing it to put tbe act into force at once; and we tbink tbe act, in tbis particular, is within both tbe letter and spirit of § 28 of Art. 4 of tbe Constitution. This objection is not well taken.

Another objection is, tbat tbe Legislature cannot delegate to tbe people of any county tbe power to locate a county seat, and a large number of authorities are cited as sustaining tbe point made by appellants. Tbis as a general proposition is true, but tbe act in question does not, either in terms or effect, delegate to tbe people of Union County tbe power to make a law. It enacts in substance (although tbe terms employed are not tbe best tbat could bave been *430 cliosen), that one of five places shall be the county seat of Union County, when the legal voters of the county shall have declared, in a certain mode, which one they prefer; and that the place chosen by the majority of voters shall be declared the county seat. The power of location is exercised by the Legislative Assembly, but it takes effect in a particular mode, or not at all, by a vote of the electors interested. This is within the provisions of § 21 of Art. 1 of the Constitution of Oregon. (Simpson v. Bailey 3 Or. 517 ; Moore v. Packwood, ante, 000; People v. Reynolds, 5 Gilman, 1 .)

The appellants also contend that the act is incomplete and inoperative, because they say its becoming a law depended upon the act of the citizens of Union County; that the second election or vote on the question, was dependent on the will of the voters of the State, and not on the will of the Legislature, and that by the terms of the act the citizens are authorized to repeal the law of 1864, which located the county seat at La Grande.

All these objections are answered by what has been already said, and by the authorities cited; but it is proper to add that we think the act in question, in effect, locates the county seat at such place as the legal voters of the county shall, by a particular mode prescribed by the act, designate. The power of designation is not left by the act to the arbitrary and uncontrolled choice of the people, but they are required to limit their suffrages, in the first instance, to five places: Oro Dell, La Grande, Summerville, Gove, and Union. If, upon the first vote, no one place shall have a majority of all the votes cast, then another vote shall be taken at the'next general .election; but upon the second vote, there are to be only two candidates—“the two points receiving the greatest number of votes cast ” are to be voted for, and the one of these two which receives the greater number of votes shall be declared the county seat. The mode of canvassing the vote, and the proclamation of the Governor, are substantially only modes of ascertaining and publishing the result of the vote. This Court held at the December Term, 1874, in Moore v. Packwood (ante, 325), that an act which provided that a term of court should be *431 held at such time as the court should appoint, by an order entered in the journal, etc., and authorizing the court to appoint the time, was a valid act. This act authorizes the removal and re-location of the county seat, but leaves or refers the designation of the time and place of such removal or re-location to the electors of the county. In principle, this act is on the same footing as the one considered by the court in the case of Moore v. Packwood.

It is objected, however, that the act does not, in terms, submit the question of re-location to the electors of the county, but to the legal voters at a Presidential election. As we have before said, the phraseology of this act is not the clearest or the best chosen; but we think that a fair construction of the terms employed, can leave no doubt of the intention to submit the question to the legal voters of Union County alone. It is true that citizens of Oregon, not legal voters for county officers in Union County, might lawfully vote in Union County for Presidential electors, and that only electors of Union County, under the Constitution, could lawfully vote upon the question of location of county seat; but the court is not to presume that voters from other parts of the State went to Union County, or were there present to vote for Presidential electors, or, if such was the case, that they also voted upon this question of county seat. That is a question of fact to be averred and proven, as well as whether or not the judges of election duly inquired of the legal voters, as the act provides, what their choice was of the candidates for county seat.

And this leads to the consideration of the first proposition of the appellants. We think the matters of fact, which counsel claim should have been tried, do not constitute a cause of suit in equity—do not present a case wherein relief can be had by injunction. There is no special statutory provision for contesting an election for location of county seat; but we think that when the question, in such a case, is the qualification of the voter, the conduct of the judges or the legality of the canvass, the proper remedy is by mandamus, and not by injunction in equity. In this respect, the appellants have mistaken their remedy.

The decree of the court below should be affirmed.