State v. Deschutes County

BURNETT, J.

The bill of exceptions does not disclose that any testimony whatever was offered in support of the allegations of the complaint and the only error assigned is the ruling of the trial court admitting in evidence the judgment-roll in the case of McKay v. Brown already mentioned.

1. It is true that the rule in this state is that in actions in the nature of quo warranto the burden of proof is upon the defendant to show his title to the office or in case of a corporation, to establish its right to exist as such an institution: State ex rel. v. Port of Tillamook, 62 Or. 332 ( 124 Pac. 637 , Ann. Cas. 1914C, 483); State ex rel. v. Evans, 82 Or. 46 ( 160 Pac. 140 ).

2. Chapter 10 of the Laws of 1913 establishing a procedure for the creation and organization of new counties, provides that the votes cast at the election required to be held shall be counted, returned and canvassed in like manner and by the same officers as in any other election; that the county clerk shall certify the same to the Secretary of State who shall also canvass them in the presence of the G-overnor and upon its being ascertained thereby that the requisite majorities are in favor thereof the latter official shall issue his proclamation declaring the new county to be thereby created. The reply, indeed, denies that any of these official acts averred in the answer were performed by the Secretary of State and the Governor. This traverse, however, cannot avail the plaintiff anything on the record before us. Section 728, L. O. L., reads thus:

“There are certain facts of such general notoriety that they are assumed to be already known to the court. Of those facts evidence need not be produced.”

*665 Section 729 is in part as follows:

“The following facts are assumed to be thus known: — * *

“3. Public and private official acts of the legislative, executive and judicial departments of this state, and of the United States.”

In the light of this rule of evidence we must know despite the denials of the reply that the Secretary of State did canvass the votes and the Governor did proclaim the creation of Deschutes County. They could not have done this legally except upon a prior regular election and count of the votes cast, resulting in the proper majority for the proposed county. In Knox County v. Ninth Nat. Bank, 147 U. S. 91, 97 ( 37 L. Ed. 93 , 13 Sup. Ct. Rep. 267), the court said:

“It is a rule of very general application that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act”: See, also, Nofire v. United States, 164 U. S. 657 ( 41 L. Ed. 588 , 17 Sup. Ct. Rep. 212).

3, 4. In the absence of any other evidence on the subject, the executive proclamation, judicially known to us and declaring the creation of the new county, makes a prima fade case for the defendants and sustains the burden of proof imposed upon them. It is analogous to a certificate of election fair upon its face and emanating from proper authority. Such a document is admissible in evidence in support of the incumbent’s title to the office when his tenure is attacked, and constitutes some testimony in his favor, and, if undisputed, sustains him. Magee v. Calaveras County, 10 Cal. 376 ; State v. Shay, 101 Ind. 36 ; Commonwealth v. Reno, 25 Pa. Co. Ct. 442 ; Kerr v. Trego, 47 Pa. St. 292, and Commonwealth v. Kelly, 255 Pa. St. 475 ( 100 Atl. 272 ), *666 are precedents giving prima facie effect to certificates of election. Of course, a defendant takes chances when he relies solely on such papers, for in quo warranto proceedings the inquiry may be extended behind the returns even to the ballots themselves in search of the true result of the election. The certificate of election or, as' in this case, the proclamation of the Governor, has controlling effect only in the utter absence of anything in the record to controvert it; but, being unopposed by any other showing, it places the validity of the establishment of Deschutes County beyond controversy.

The county having been regularly created, the power of the Governor to appoint a county judge and commissioners and their right to those offices follow as a matter of course. It is unnecessary to consider the validity of the act of February 1,1917, or the effect of the decree in McKay v. Brown.

The judgment of the Circuit Court is affirmed.

Aitibmed.