Bellarts v. Cleeton

132 P. 961 | Or. | 1913

Mr. Justice Burnett

delivered the opinion of the court.

Section 4922, L. O. L., reads in part as follows:

“The election hereunder shall be held only on the first Tuesday after the first Monday in November of any year. The petition therefor shall be filed with the county clerk not less than thirty nor more than ninety days before the day of election. * * If, under the provisions of this act, an election shall be. demanded wholly, or in part in any incorporated city or town or any ward or precinct therein, to be held at the time of the city or town election occurring in a year in which there is no general election, then the county clerk shall notify the proper an-, thority of such city or town that such election has been demanded in order that such, city or town authority may cause the official ballots to he prepared in accordance with the provisions of this act, and the city auditor, or clerk, or recorder, as the case may be, shall make return to the county clerk of the vote for and against prohibition in the several precincts of said city or town, and thereafter said matter shall proceed as in the case of a general election. * * ”

1, 2. All the words of this statute must be construed to stand and he given their natural effect. The words appointing the first Tuesday after the first Monday in November of any year for the holding of an election are restrictive in their signification. They govern the time for holding the election so that it must be held on that day whether it is in a year of a general biennial election or in the alternate year. If a city would operate under the local option law, it must have its election on the first Tuesday after the first Monday in November. The county court has no power to entertain a petition unless the same is filed not less than 30 nor more than.90 days before that day in any year, and it has no power to order, an election to be held at any other time in the year. In a proper case, therefore, the first point suggested by the demurrer is not well taken.

3, 4. The complaint does not show, however, that the plaintiff will suffer any particular damage to his person or property, and does not state any facts from which the court could draw the conclusion he announces by the allegation quoted. This subject was considered by this court in the case of Friendly v. Olcott, 61 Or. 580 (123 Pac. 53), where we held: “That as against public officers, where their action involves purely public or political rights, the drastic remedy of injunction can be invoked only by the state acting through its proper law officer. ’ ’ Injunction cannot be invoked to decide academic questions.

On tile second point suggested by the demurrer it is well taken, and the decree of the Circuit Court is therefore affirmed.

Aeeibmed.