State v. Malheur County Court

Mr. Chief Justice Wolverton

delivered the opinion.

But one question is involved herein at this time, and that is whether the writ states facts sufficient to constitute a cause for relief. Me have concluded that, as tested by a demurrer, it does not, because it does not show that a petition of 10 per cent of the registered voters of the county was filed with the county clerk in the manner prescribed by the act, that the county court ordered an election to be held, and that one was held in pursuance of such petition and order. Such conclusion disposes of the case, and renders it unnecessary that we look into other questions presented, touching the constitutionality of the act.

1. It is a rule of law, the observation of which is incumbent upon the courts, not to consider a constitutional question when the case can readily and logically he disposed of upon other grounds. If our decision were otherwise upon the demurrer, so that the sufficiency of the writ would have depended upon the constitutionality of the act, then these questions would have been of the very essence of the controversy, and it would have been proper for us to have considered and disposed of them.

2. Our reasons for the conclusion reached are elementary. To authorize an issuance of a writ of mandamus, it is necessary that the petitioner first show a legal right in himself to have the act done which is sought by the writ; and, second, that it is the plain legal duty of the defendant to perform the act, without discretion to do or refuse it: Spelling, Extra. Eem. § 1369; 19 Am. & Eng. Enc. Law (2 ed.), 725 et seq.

3. As we view the local option act, the county court is vested with no discretion in the premises. When the returns are opened and the abstract has been made by the clerk and justices, and i! is shown that the majority of the votes is for prohibition, *522 the county court has but one duty to perform, and that is to make the order prohibiting the sale of intoxicating liquors within the district involved. The court does not sit in its ordinary or regular capacity under the constitution and statutes, for hearing causes or transacting county business, but in a special capacity under the act. These special duties are plainly prescribed, which are to be performed not upon any discretion vested in the court, but upon the exigency of certain conditions that are left to the electors of the district involved to bring about. When the conditions exist, the duties follow without more, and are to be discharged in a purely ministerial capacity, to carry out the purposes of the act'.

4. But, to put these officers in the wrong it is essential to show by apt allegations that it has become their duty to act under the law, and for that purpose it was insufficient to allege merely that an election was duly held. This allegation, under the conditions here present, is a mere conclusion of law, and, in order to show that an election was duly held, it was essential to show that the successive prescribed steps which lead up to it were taken; that is, that there was the proper petition filed with the county clerk, and that upon that petition an election was ordered to be held, and that in pursuance of such order the election was held. Without these there could have been no election “duly held.”. These acts are made by the law the essentials to an election, and, in order to charge the county court with the dereliction of its ministerial duty to order prohibition, they must be shown tO'have been observed.

5. Where the matter is collateral to the essential fact, it is sufficient to allege generally that an election was duly held, or that an officer was duly elected and qualified, assuming to, act in the particular capacity involved, as it has been alleged herein that the defendants are the duly elected judge and commissioners ; but, where the fact itself must appear, it is not sufficient to say that it had been duly performed, without stating how.

6. It must be considered that the demurrer is the test here, and the writ is to be construed most strictly against the pleader; and, thus construed, the essential acts must appear to have been performed or observed, as prescribed by the act, which precede *523 the duty required of the county court, or else it cannot be required to act, and such is not the case here, except by legal conclusion.

The judgment of the circuit court will be affirmed, and it is so ordered. Affirmed.