169 N.W. 499 | N.D. | 1918
This is an appeal from an order sustaining a demurrer to a notice of contest in which it was sought to question the validity of an election held under the authority of chapter 101, of the Session Laws of 1917. This act provides for an election to be held, in connection with the primary election, for the purpose of locating the county seat in counties where it has not previously been permanently located. The facts necessary to an understanding of the questions presented axe as follows:
At the primary election held in June, 1918, the question of the location of the county seat of Grant county was voted upon and the votes were canvassed, showing the result to be as follows: In favor of the village of Elgin, 1,000 votes; in favor of the village of Carson, 785 votes; in favor of the village of Leith, 752 votes. The vote in favor
Section 3208 of the Compiled Laws of 1913 authorizes the county commissioners of a newly organized county to fix temporarily the county seat, and it is therein provided that “such location shall remain the county seat until the first general election thereafter, when the qualified voters of such county are empowered to vote for and select the place of the county seat by ballot as provided by law.” The legislature in 1917 amended the foregoing section by adding the following proviso: (Sess. Laws 1917, chap. 101), “Provided, however, that in counties where the county seat has not been permanently located, the question of location of such county seat may be voted on at any primary election upon a petition or petitions, each to be signed by at least 10 per cent of the qualified voters of such county, voting for the office of secretary of state at the last general election, stating the date of signing and the residence of each qualified voter, designating therein the proposed county seat, which said petition shall be filed with the county auditor at least thirty days prior to the holding of any primary election, and if more than two towns are contesting for the location of .the county seat at such election, then the two towns receiving the highest vote at such . . . election, and these two towns only, shall be placed on the official ballot at the first following
Section 3208 of the Compiled Laws of 1913, as it originally stood and as amended, contains no express provision for the contesting of an election held thereunder. The section, however, in its arrangement in the Political Code is a part of chapter 42, which is entitled “Counties and County Officials,” and in the same article it is provided in' § 3210 that, “all elections under this article, where not otherwise provided, shall be conducted in the same manner as required by law for general elections. ...” This refers only to the manner of conducting the election. The authority to contest elections for the location of county seats is found in § 1051, of the Compiled Laws of 1913, which provides that “in any county where there is a vote for the election or for the removing or changing of the county seat of such county, or changing the county lines thereof, any elector of such county on leave of the district court may contest the validity of such election as to the right of the place declared and selected as the county seat. . . . Such elector shall give notice in writing of such contest to the county commissioners or a majority of them, of the county in which such vote was taken, by servings notice as provided in § 1046, within thirty days after the result of such vote is canvassed. Such notice shall specify the grounds of such contest, and shall be filed with the clerk of the district court within ten days after the service thereof upon the county commissioners as aforesaid, and such contest shall be tried and determined by the district court or by a jury as provided for in this article for the contest of county officers.” Section 1046 of the Compiled Laws of 1913, providing for the notice of contest, is sufficiently broad to comprehend a contest by an elector to determine the validity of an election locating a county seat.
The principal question in this connection arises upon the interpreta
Appellant has called to our attention the cases of Treat v. Morris, 25 S. D. 615, 127 N. W. 554; State ex rel. Diepenbrcck v. Gates, 35 Minn. 385, 28 N. W. 927, and Truelson v. Duluth, 60 Minn. 132, 61 N. W. 911, in which it was held that a general law prescribing a mode of contesting elections is applicable to general and special elections, and even to elections held to determine questions of policy, such as that of prohibition or license. The general provisions construed in the cases referred to are analogous to § 1046 of the Compiled Laws of North Dakota for 1913 and we do not question the propriety of giving a broad construction to a law of that character for the purpose of making the remedy provided available. But, it is one thing to construe such a statute as being applicable to an election at which a question is finally determined or an officer elected, and quite another thing to hold it applicable to a mere preliminary expression of preference in anticipation of a final expression at a later time. None of the cases Referred to goes to that extent. For the reasons above given, we are