132 N.W. 1080 | N.D. | 1911
Lead Opinion
This is an appeal from an order of the district court of Pembina county, denying the petition of the appellants, residents, electors, and taxpayers of the city of Pembina, for a writ of prohibition, and dismissing such application.
At the general election of 1910, there was submitted to the voters of Pembina county the question of county-seat removal ordered July 13, 1910, on a petition for removal from Pembina city to the city of Cavalier. Further facts are recited in the opinion in connection with the points raised. To avoid repetition, they are omitted in this introductory statement.
Appellants urge that the county commissioners acted without and in excess of their jurisdiction when they ordered an election without according to the petitioners and other electors of Pembina county, an
The defendants and respondents herein are the county commissioners and county auditor of Pembina county; and on return to the writ in the district court they made answer and return, reciting the foregoing matters and the findings and order of the board of county commissioners of said county. They made further return that the county commission<ers who passed upon the sufficiency of said petition had all of them been Residents for more than ten years, and two of them'for twenty and •twenty-five years, respectively, of said county; that they were intimately and thoroughly acquainted with the electors of the county, and •their joint knowledge thereof was such that some member of the board was able to vouch from personal knowledge as to the signature of many •of the petitioners, and the qualifications of many, if not all, the petitioners ; that a public examination was had, proceeding, without interruption, from 3 :30 o’clock in the afternoon of July 13, 1910, to between the hours of 10 and 11 of said evening, except a short intermission had; that in such examination the names of the signers were read aloud by some member of the board, and the genuineness of each signature determined, and the qualifications of the elector so signing
The return further shows that at the election had November 8, 1910, 2,269 votes were cast in favor of the removal of the county seat to the city of Cavalier, and 815 votes cast against the same, such votes being-cast by duly qualified electors of said county at said election, a total of 3,084 votes cast, there being 213 votes cast for such removal, more-than two thirds of the number of the voters voting at such election, all as shown by the election returns duly certified by the official board of canvassers of said county. Eespondents admit that, unless they are restrained, county-seat removal will be had pursuant to said election.. The foregoing recites the substance of the -return to the writ issued in. the lower court in this action.
Counsel for appellant cites Crews v. Coffman, 36 Neb. 824, 55 N. W. 265, as authority for his contention that the board of county commissioners on July 13, 1910, lost jurisdiction to make a valid order of submission to election, because of their alleged arbitrary and unreasonable-action in refusing to fix a date for hearing and granting time for investigation before so acting on the petition. The case relied upon fol
The above extracts from the opinions in these two cases are sufficient to illustrate that the law cited under such a state of facts has no application in the instant case. The extracts quoted show conditions which, if established; must render the petition void. This is charged on actual knowledge specifically and definitely, and a hearing is asked thereon. Compare with the case on trial. Counsel’s principal reasons for deferring action, when summed up, amount to a statement that he desires two or three weeks’ time in which to investigate into the genuineness of the signatures and the legality of the petition. Not a single fact is alleged from which it can be assumed that the petition is invalid. On the contrary, the written objections carefully avoid stating any facts except on information and belief. It is true it contains a blanket charge that “large numbers of names on the petition were not signed personally by the alleged petitioners, that a large number were not verified, and that a large number of persons signing said petition were not qualified electors,” but carefully avers, also, that “said objections are made entirely upon information and belief.” No facts are alleged as a foundation for such conclusions on information and belief. In its last analysis the written objection is a nullity. It brought no fact to the attention of the county commissioners. It cast upon them no duty other than existed before its filing. They were in session to determine, in the performance of their duty, the genuineness of the signatures, the sufficiency of verification, and the number of
The proceedings had for removal of the county seat from Pembina to Cavalier were based upon the provisions of the Bevised Codes of 1905, included within §§ 2358 and 2363, inclusive. As the whole statute as one act is under consideration, we will recite the same, as follows:
“Sec. 2358. County seat, removal of. — Whenever the inhabitants of any county in this state desire to remove the county seat of the county from the place where it is fixed hy law or otherwise to another place, they may present a petition to the board of county commissioners of their county, praying such removal and that an election be held to determine whether or not such removal shall be made. Such petition must be verified by the affidavit of each of the signers thereof, stating that he
' “Sec. 2359. Commissioners to submit question to vote; when. — If the petition is signed by qualified electors of the county equal in number to at least three fifths of all- the votes cast in the county at the last pre-ceding general election, the board must at the next general election submit the question of removal to the electors of the county.
“Sec. 2360. Notice of election. — Notice of such election clearly stating its object must be given, and the election must be held and con-dueted, and the returns made, in all respects in the manner prescribed by law in regard to the submitting of questions to the electors of a lo■cality under, the general election law.
“See. 2361. Ballot, how marked; notice of result. — In voting of the question, each elector must vote for the place in the county which he prefers, by placing opposite the name of the place the mark X. When the returns have been received and compared and the result ascertained by the board, if two thirds or more of all the legal votes cast by those voting on the proposition are in favor of any particular place, the board must give notice of the result by posting notices thereof in all the election precincts in the county, and by publishing a like notice in a newspaper published in the county at least once a week for four weeks.
“Sec. 2362. County seat; when deemed changed. — In the notice provided for in the last section, the place selected to be the county seat of the county must be so declared from a day specified in the notice, not more than ninety days after the election. After the day thus named in the notice the place chosen shall be the county seat of the county.
“Sec. 2363. Statement of result of election; where filed. — Whenever any election has been held as provided in this article, the statement made by the board of county commissioners showing the result thereof must be deposited in the office of the county auditor, and whenever the board gives the notice prescribed in the last section it must transmit a -certified copy thereof to the secretary of state.
“Sec.-2364. Election held only once every four years. — When an «lection has been held and at least two thirds of the votes cast at such election are not cast for some other place than that fixed by law as -the
Following these provisions are those relative to a second removal after one removal has been had, in which the statutory provisions as to voting and marking of ballot with notice and record of result are similar to those required in original removals. We are concerned with the application and interpretation of the statute under its provisions applying to first removals.
The petition prayed for removal of county seat from Pembina, where it was fixed by law, to another place designated, the city of Cavalier in said county. The petition otherwise contained the requisite averments, and was subscribed and verified by the affidavit of electors equal in number to more than three fifths of the votes cast in the county at the last preceding election prior to the date of said petition. Thereupon the county commissioners ordered the question submitted. The ballot used! in the election was in the following form:
County-Seat Kemoval.
Shall tbe place of the county seat of Pembina county be removed from the city of Pembina, where it is now located by law, to the city of Cavalier ?
The voter will indicate his choice by placing an (X) after the name of the place which he prefers below;
For the City of Cavalier for County Seat Q
For the City of Pembina for County Seat Q
by making a cross (X) opposite the city you wish to vote for.
The foregoing was the form of the ballot as the same was printed upon a lengthy sheet also containing thereon two proposed constitutional amendments submitted to the vote of the people; and also the question of county aid of a county fair, likewise submitted to a vote, the county-seat removal matter being printed between the constitutional amendments and the tax proposition with the direction as to the cross (X) at the end of the ballot. No question is- raised as to any prejudice resulting on the county-seat removal from the maimer of the placing of the
Counsel for the appellant Pembina city bases his case on the premise that the petition is restrictive and void, in that it confines the petitioner to the place named therein, contending that the petition should contain but the words of the statute, petitioning the removal from Pembina city, “where now fixed, to another place,” the place being unnamed: That likewise the ballot submitting the question of removal to the electors should not have restricted them to a choice between cities of Pembina and Cavalier, thereby preventing the voters from expressing their free choice in the matter of relocation. But that the voters should be free to both designate and vote for the place they prefer for a county seat. Our statute is apparently ambiguous, in that it may be construed as: (1) Authorizing a petition for removal of county seat with place unnamed, followed by an election with an open vote in which any place or location in the county may by the voter he nominated and voted for, with the requirement that the particular place chosen shall have two thirds of all votes cast at the election, otherwise the county seat location to remain unchanged; or (2) it may be interpreted to require that the petition for removal shall be to another place designated therein, to be followed by an election in which the question submitted thereby shall be that of whether a change shall be had from the old location to the one petitioned for, with no other proposed county-seat candidates in the field and no other question presented by the ballot, and followed by removal to the place petitioned for if two thirds of all votes cast in the election be in favor of such removal. In the interpretation of an ambiguous statute to aid in its construction, resort may be had to the history of similar previous legislation, with which the legislature is presumed to have had knowledge. Likewise consideration may be given the source from whence the statute was obtained, if traceable, including departures in the borrowed enactment from the original. The legislative intent is also important as apparent from the entire enactment considered with the subject of the legislator
The right of Dakota territorial assembly to legislate on county-seat matters was granted by U. S. Rev. Stat. § 1851, in the organic law •common to all territories, providing in general terms: “The legislative power of every territory shall extend to all subjects of legislation not ■'inconsistent with the Constitution and laws of the United States.” This remained unchanged by the enabling act, and the enactments of the terri“•torial assemblies on county-seat matters continued in force as they existed at statehood.
The first statute on the subject was enacted by the first legislative asfsembly of the territory of Dakota, in 1862, as chapter 20, Laws Dak. '1862, reading:
“Sec. 1. That when any number of the legal voters in any county ’in this territory, equal to one half the highest number of votes cast the last preceding general election in such county, shall, at least thirty • days previous to the next ensuing election, petition the county eommis-sioners of such county to be allowed to vote on the removal or location of the county seat of such county to any point within such county, the said -commissioners' shall cause to be inserted in the notices for the next gen-eral election an article requiring the voters of such county to vote on the removal of the county seat to, or the location thereof, at the point named in the petition. That only one point of removal or location shall .be voted for in each year and that point shall be the one presenting the largest number of petitions; provided that the same point was not voted for at the last preceding election, and that it shall be lawful for such petitioners to deposit any sum of money or bonds with the county treasurer which they may propose to donate for the erection of public buildings at the point petitioned for: Provided that in any of the counties -of the territory in which the county seat has been or shall hereafter be
“Sec. 2. The voters of any county so qualified shall vote at the next general election on the removal or location of their county seat, by ballot written or printed, as follows: For county seat at........ (filling the blank with the place named in the petition) or, against county seat at........(filling the blank as above), and if a majority of the votes cast are for the point named in the petition then that place shall be the county seat, otherwise the county seat shall remain as before.”
From the foregoing it is noticeable that the petition for removal contained the name of the proposed county seat, and that the ballot was restrictive in requiring a choice between the old and the proposed new county seat, and not permitting an open vote on the question. The statute was a removal as distinguished from a relocation statute, the difference between which will be more definitely pointed out hereinafter. This statute remained in effe.ct five years until the act of 1867 (chapter 18, Laws Dak. 1866 — 67), consisting in part of the following provisions:
“Sec. 1. That when any number of the legal voters in any county of this territory, equal to one half the legal number of voters as shown by the census of the last preceding assessment in such county, shall* at least thirty days previous to the next ensuing election, petition the county commissioners of such county to be allowed to vote on the removal or location of the county seat of such county, the said county commissioners shall cause to be inserted in the notices for the next annual election an .article requiring the voters of such county to vote on the removal or location of the county seat of such county at the next ensuing election.
“Sec. 2. The voters of any county so qualified shall vote at the next election on the location or removal of their county seat, by ballot written or printed, as follows: For county seat at........ (filling the blank with the name of the place voted for), and if the vote be for the removal of the county seat which has been previously located by direct act ef the legislature, or by vote of the people, it shall require a majority vote to remove any county seat thus located. But if the vote be for the location of a county seat in any new county which has been temporarily «designated by special act, a simple plurality vote shall be deemed suffi
This statute was clearly what is known as a relocation as distinguished from a removal statute; that an open vote was permitted; the electors were not restricted in their choice to any particular place, but, instead, could write the name of their choice for county seat on the ballot; and that a majority or “simple plurality vote,” as termed, governed, whether its effect be to remove the county seat from the place previously chosen or to select a county seat in lieu of a temporary choice therefor previously named. In accordance as we may presume conditions required in a new and sparsely settled country just beginning to be organized into counties, the territorial assembly changed from a removal to a relocation statute. The next legislation on the subject is found in chapter 4 of the Laws of Dakota of 1868-69, particularly at §§ 46, 47, and 48 thereof, as follows: ■ “Sec. 46. Whenever any county shall organize in this territory, the qualified voters thereof are hereby empowered to select the place of their county seat by a vote at the first election held in the county for the choice of their county officers. For this purpose each voter may designate on his ballot the place of his choice for the county seat, and when the votes are canvassed the place having the majority of all the votes polled shall be the county seat, and public notice of such location shall be given within thirty days by the tribunal transacting county business, by posting up notices in three several places in each precinct in the county.” This provision applied only to counties organizing to enable the selection of a county seat by ballot simultaneous with the first election of county officers. The location feature as applied to county-seat matters remains here as in the next provisions, viz : “Sec. 47. Whenever the inhabitants of cmy county are desirous of changing the place of their county seat, and upon the petitions being presented to the tribunal transacting county business, signed by two thirds of the qualified voters of the county, it shall be the duty of said tribunal, in the notices for the next general election, to notify said voters to designate upon their ballots at said election the place of their choice, and if upon canvassing the votes so cast it shall appear that any
The next important legislation touching location of county seats is in chapter 27 of the Laws of Dakota Territory of 1874-75, re-enacting §§ 46, 47, and 48 of the Laws of 1868-69 as §§ 41, 42, and 43 of the Laws of 1874-75. The assembly had in 1871 by chapter 12 of the Laws of 1870-71 granted the county commissioners the power to temporarily locate county seats in newly organized counties. In the codification of territorial laws, compiled by authority of the territorial assembly, we find on page 32 of the Laws of Dakota of 1877, under the head of “Location of County Seats,” §§ 41 and 42 of the Laws of 1874 — 75 re-enacted, § 43 thereof being omitted and being expressly repealed by-the general repealing act in the Revised Codes of Dakota of 1877, by the repeal of the chapter in which it was contained. And by this repeal a provision for second and third elections, after a first election on the matter of determining location of county seats, passed from the statutes of -our state. This remained until amended by chapter 173 of Laws of Dakota Territory of 1887, providing for relocation of county seats
Next we find in the Compiled Laws of 1887, § 565, thereof: “Whenever the inhabitants of any county are desirous of changing the place of their county seat, and upon petitions being presented to the county commissioners, signed by two thirds of the qualified voters of the county, it shall be the duty of the said board, in the notices for the next general election, to notify said voters to designate upon their ballots, at said election, the place of their choice; and if, upon canvassing the votes so given, it shall appear that any one place has two thirds of the votes polled, such place shall be the county seat; and notice of such change shall be given as hereinbefore provided in the case of the location of county seats of new counties.” It will be noticed that § 565, Comp. Laws, is § 47 of chapter 4 of the Laws of 1868-69, — the second relocation statute passed in Dakota territory. Thus a relocation iaw remained in force from 1869 to 1895, when an entirely new statute, the present statute, was enacted with the adoption of the 1895 Code. Just prior to the enactment of our Codes in 1895, Montana had passed a county-seat removal statute entirely different from the existing county-seat removal law in force in this state, and we find the Montana statutes, with but one line omitted, oaken bodily and inserted into the Codes of 1895, in lieu of § 565, Comp. Laws 1887. The complete change in the statute generally from
Our statute provides: “The voter must mark opposite the name of the place the mark X,” in expressing his preference for county seat. This provision being mandatory, the question then arises how the name of the place is authorized to be upon the ballot prior to the election? Erom what source does the county auditor know the names of the proposed county-seat locations to be placed upon the ballot ? By what is he guided in the performance of the duty required of him by the election laws, in providing the voters of his county with an official ballot required under §§ 614 and 640 of the Codes of 1905, that shall have thereon the names of the proposed candidates for county seat, that the voter may be enabled to vote on such question by placing, as commanded by ■statute, the cross opposite the name on the ballot? There is but one possible answer, but one reasonable source from which to procure the names, — the petition for change of location, under and, because of which the election itself is held. Bear in mind the petition brings the question before the people, and in so doing defines the question to be submitted to them, as being whether the county seat shall be changed from the place where fixed by law to another place. Unless the statute relating to the contents of the petition in the light of the required ballot be construed to the effect that the petition shall designate the place, that the ballot may be framed accordingly, the statute as to ballot must be ignored in that mandatory part thereof specifically defining the manner of exercise of franchise, the manner of expression of choice, the chief object to be-
Counsel for appellant insists on the right to an unrestricted vote, and that the statute be construed as granting the voter the right to vote his preference as to place, and that the ballot in restricting a vote to a choice between Pembina and Cavalier as county seats was void in not permitting free choice in such respects. However, counsel admits the impossibility of determining the manner in which the ballot should be prepared that it may contain thereon the names of many or all of the various places in the county the voters may desire to select from, and still permit the elector to comply with the statute and exercise his choice by “placing opposite the name of the place the mark X.” Counsel was previously before this court in this matter in State ex rel. Atty. Gen. v. Norton, 20 N. D. 180, 127 N. W. 717, asking relief by prerogative writ, there also admitting the impossibility of construction to supplement the statute, and determine how any other candidate for county seat than the one named in the petition therefor could be placed upon the ballot. The statute is entirely silent upon this very important question if the petition be construed as appellants desire. But if
An election was had in 1894 under the relocation statutes, in which the county seat of Pembina county was sought to be located elsewhere than at Pembina, and the requisite two thirds necessary to the relocation failed, and Pembina city has remained the county seat. Counsel for appellants, after calling attention to this, refers to the action of Bepresentatives Bestameyer and Johnson in 1907, representing the legislative district in which Cavalier city is situated, in introducing a bill to amend the sections of the statute now under construction, to require the name of the place to be inserted upon the ballot to be that named in the petition for removal of county seat. Counsel urges that the action of the legislative assembly in failing to pass the proposed amendment in 1907 is in line with appellants’ construction of the statute, and contrary to the one adopted in this opinion. We fail to see any force to counsel’s argument, for the reason that the legislature may have adopted our construction of the statute, and so declined to amend, considering it unnecessary to perform an idle act in further explaining a matter already declared in plain English. Likewise is the discussion in the constitutional convention found on pages 128 to 132 of the Debates of the Constitutional Convention, without significance on this matter, except their action in leaving the matter of change of county seats to legislation, instead of fixing it by constitutional enactment. Undoubtedly the sense of that convention was in accord with their action. They may have, and probably did have, in mind the prior legislation on county-seat matters of the Dakota territorial assembly. If so, they must have known of its earlier adoption of the removal statute and its change thereafter to the relocation system, and declined to bind the state in the future in such important matters by constitutional enactment, leaving this question to future legislation. The wisdom thereof is shown by the fact that subsequent legislatures have deemed it necessary to amend and entirely
Appellant in his brief urges that to so construe the law would per-unit petitions for the removal to be used by the established county seat 'to prevent any county-seat removal whatever by the filing at successive elections of a petition for removal to an undesirable location, thereby putting in the field at each election permitted a weak candidate as a ■contender against the established county seat; and, inasmuch as a vote ■on removal cannot be had more often than once in ten years, any removal whatever could be prevented. The fallacy in this argument lies in appellant having overlooked the statutory requirements as to the petition. 'The statute requires the petition to be signed by qualified electors equal in number to at least three fifths of all the votes cast in the county at the last preceding general election, and that the affidavit of each of the ¡signers thereof shall be attached to the petition, and in such affidavit ■each petitioner must swear he is a resident of the county, a qualified elector, that he personally signed his name thereto knowing the contenis <md purposes of the petition. One reason for the requirement is to compel the petitioner to know what he is signing and the object to be accomplished. The question of instituting removal proceedings rests with the right of petition knowingly exercised by three fifths of the entire electorate of a county. Counsel assumes the .possibility that such a petition could be obtained for an undesirable place, “a weak candidate,” thereby preventing a needed removal from the established location. It would be a violent assumption for this court to assume, as has counsel, that three fifths of the voters of a county will knowingly join in petitioning an election to bring about something they do not desire, whether because induced against their will to so petition, or that they may defeat the movement at the polls, and thereby prevent removal. This argument does not appeal to us as persuasive. Conceding it to have some force, it ■■amounts to but the practical operation of the county-seat election we are asked to say was intended, if the same be construed as a continuation of, instead of departure from, the statute regulating county-seat removals in force immediately prior to the going into effect of the 1895 Code. Under counsel’s illustration, the petition would be obtained in part that the election procured thereby could be defeated by the petitioners at the election. Under the old relocation system, the open vote in prac
In discussing the questions' involved in this opinion, we have designated our present statute as a removal as distinguished from a relocation statute. We have used these terms advisedly. They are not synonymous-when applied to county-seat removal statutes. The terms “removal”' and “relocation,” as so applied, signify statutes of radically different procedure with different characteristics. Under relocation statutes in election it is the old county seat against the field in which the voter may designate in writing on the ballot any place in the county as the place of his choice. He is not restricted in making such choice to places nominated, but may, instead, nominate and vote his choice. ■ As in voting, so in petitioning. The people desiring relocation may petition not for any particular place, but for the relocation of the county seat. The incidental result may mean a change or removal of the county seat from the place where formerly located to the place where relocated, but the idea prevalent throughout the whole procedure from petition to ballot is not of removal from the established to a proposed county seat, but the question where the county seat shall he located.
On the contrary, under removal statutes the primary question is one really of removal. The petition asks it from the county seat to a proposed new county seat designated in the petition. The intent inherent, in a petition for removal is of restricting the voters to a choice between two places, the old and the proposed locations, instead of the contrary idea under relocation statutes of an open field with many candidates,, and a free and unrestricted choice. As in the petition under removal statutes, so in the ballot. The preference of the voter is restricted to a. selection between two locations. Usually the proposed location has additional burdens to be met to be successful, compared with the require.ments for relocation, such as a larger petition and greater percentage of vote usually necessary to remove than to relocate. The law governing petitions for relocation and elections thereunder is not therefore strictly applicable to petitions for election under removal statutes. We have ex
We might remark that the following states whose statutes we have-examined are removal and relocation statutes, respectively:
Kemoval: Minnesota, South Dakota, Michigan, Indiana, West Virginia, Iowa, Wisconsin, Washington, Kansas, Kentucky, Maine, Mississippi, Missouri, Montana, North Dakota, Ohio, and South Carolina.
Kelocation: Alabama, Arkansas, California, Colorado, Florida, Nebraska, and Oklahoma.
Appellants contend that a holding of the statute to be a removal statute would necessarily require it to be held unconstitutional as being special legislation relative to county seats, contrary to § 69 of our Constitution, providing: “The legislative assembly shall not pass local or special laws in any of the following enumerated cases, that is to say:. (3) Locating or changing county seats.” The statute is a general one, applying without reference to any particular locality and prescribing procedure only. If this statute should be held unconstitutional, all general statutes regulating the matters covered in the thirty-five different subdivisions of which locating or changing county seats is but one would likewise be determined void. The constitutional inhibition against special legislation does not prevent classification, when such classification is natural, not arbitrary, and standing upon some reason having regard to the character of the legislation of which it is a feature. Edmonds v. Herbrandson, 2 N. D. 270, 14 L.R.A. 725, 50 N. W. 970. All county-seat removal statutes necessarily fall under one of two general heads. We see no reason, so long as the statute has general application, for holding it unconstitutional. To so hold would be to declare there could be no removal statute, and equivalent to holding any general classification statute along removal lines invalid. Counsel has cited
Counsel for respondents contends that appellant has invoked the wrong remedy in proceeding by writ of prohibition; that appellant should have had review by certiorari. We have held with respondents on the merits, it is unnecessary and needless to pass on this interesting question of procedure. Courts and text-book writers disagree on the propriety of the use of the writ of prohibition under the circumstances in which it is sought to be used in this action. Having disposed of the. issues on the merits, there remains no necessity for determination of this question, and we do not pass upon it.
The writ heretofore issued, restraining the county commissioners, respondents, from further proceedings necessary to effect the removal of the county seat from Pembina city to Cavalier in said county of Pern-, bina, as provided by law, is hereby vacated and dismissed; that removal may be had pursuant to said election herein declared to be valid and sufficient.
It is so ordered.
Rehearing
On Rehearing.
A petition for rehearing was granted in this case that every-, thing throwing light upon the decision of an action of such importance should receive consideration. We fully realized that in a matter so vitally and directly affecting thousands of people, as a decision fixing the permanent location of a county seat, too much discussion and too thorough investigation could not be had prior to its final determination; that in this, as well as in all other matters, no decision should be rem dered that will not stand the test of reason as well as the closest analysis from every legal standpoint. Wi+h this in mind, the petition for rehearing was granted, that the conclusions in the former opinion might be re-examined, and that any additional law on the subject not heretofore considered could be brought to our attention, that there might be no reasonable doubt as to the verity of the final decision and the prece-
On reargument we have had our attention called to the files in the .office of secretary of state, wherein is the original bill enacting in 1895 the revision of the Political Code, of which the county-seat provisions under consideration are a part. It is significant that this enrolled bill originally contained the words the omission of which has rendered this statute ambiguous. Said bill, as drafted, was an exact duplication of the Montana county-seat removal statute in such particulars, and contained the requirement that the petition for removal should pray such removal “to the place named in the petition.” But through such words, “to the place named in the petition,” a line has been drawn with a pen, and the Codes thereafter printed have omitted the words evidently stricken from the original bill either before or after its enrolment.
The report of the revision commission (of which one member of this court was secretary) was reported to the legislature of 1895, on January 10th of that year. The legislature, acting on such report, appointed a joint committee of five from the house and four from the senate, to which joint committee'was submitted the report of said revision commission. See pages 45 and 46, House Journal 1895. Seven bills, each bill a code, were then reported and became, with more or less change, the seven codes, the compilation of which, with amendments, constitutes our present Bevised Codes. The legislature of 1895 perpetuated the report of this revision commission in the printed report of the legislative joint committee thereon, found in full as the appendix to the house journal of that year. It is significant that in said committee’s report on the proposed Political Code (found in said appendix there numbered as § -2010) is found under the designation of “New Legislation” the present 1905 Code provision (§ 1880, Code 1895), but containing, in addition thereto, that the petition pray removal “to the place named in the petition.” With this is found all the provisions of our present law, including that as to marking of the ballot as contained in § 2361, Code 1905 (§ 1883, Codes 1895), except that such ballot provision was not when reported by said joint legislative committee coupled in the same section with the provision as to canvass of returns
From the foregoing undisputable facts in the history of this legisla* tion, it is established beyond cavil that removal statutes, identical with those then under consideration by the Montana legislature, were by the revision committee reported to and acted upon by our legislature. Whether this bill was the original product of the revision committee of this state, thereafter becoming a law in Montana a week before enacted here, or was conceived in Montana and became a statute here as borrowed enactment from that state, is wholly immaterial, except as it may be of interest from an historical standpoint. The crucial decisive fact remains, that in its original form, from whatever source obtained, this was a removal statute as distinguished from a relocation one; and of equal importance is the additional fact that the legislature understood that this bill was new legislation, and understandingly enacted it as such, and have left the same so designated on their legislative journals of that year to aid in its construction. Whether-the omitted words “to-•the place named in the petition” were stricken unautkorizedly from the bill as it is officially reported to have existed when in progress through the legislature, or whether amended without note thereof, it is- not nec* essary to determine. But the important, uncontrovertible fact exists that it was new legislation, and not amendment of existing law. It was a change from old to new, and not a continuation of the old with amendment. When so construed as originally introduced, there is no chance for ambiguity, and every portion of the statute is plain and simple, of harmonious construction, making all of it effective, including its requirement that there be an official ballot provided as under general law required, and that this official ballot contain thereon the- names of the proposed places for county seat from which the voter makes his choice by placing opposite the name of the place on the ballot the mark X as plainly required.
With these ballot provisions mandatory in terms and to be so construed, no compliance could be had if the theory of the appellants should be sustained. Such a holding would overlook the express repeal of the old relocation statutes with its right of designation'of a choice, as explained in the main opinion in this case. And, pursuing the appellants’ contention to the end, no ballot could be prepared that would not be
In their brief appellants appear solicitous lest we judicially legislate, and charge that the construction of the statute above given places therein by said manner and means the words “to the place named in the petition.” It is elementary that a construction requiring an addition amounting to what is so termed judicial legislation, cannot be adopted. To this charge we plead not guilty. To appellants the statute may be, as counsel say in their brief, “so plain that he who runs may read,” but still counsel has most exhaustively briefed this statute, so plain to them. And a part of what is said in such brief we hereby adopt as sufficient answer to such criticism, as to judicial legislation, and as authority for what has been done in construing this statute broadly from its four corners, aided by the history of its enactment. We refer to §§ 215 et seq. of Sutherland on Statutory Construction, as follows: “The- statute itself furnishes the best means of its own exposition, and, if the intent of the act can be clearly ascertained from a reading of its provisions and all its parts may be brought into harmony therewith, that intent will prevail without resorting to other aids or construction. . . . The true meaning of any clause or provision is that which accords with the subject and general purpose of the act and every other part.” This
We reaffirm what was said in the original opinion as to the action of the county commissioners on the presentation of the petition for removal. They were under no obligation to postpone action without some reason therefor recognized by law as imposing upon them the duty to continue the hearing on the petition. Under the record in this case, not a single fact appears from which fraud or illegality in the petition itself can be inferred, much less be considered as established. And we have before us the specific findings of the county commissioners, the
In the petition for rehearing, appellants’ counsel criticized the portion of the opinion dealing with the practice question, raised by respondents’ counsel, and insist that they, appellants, are entitled to a decision on such question never raised by them. Our answer is that all questions are fully decided so far as this litigation is concerned, and such decision is binding on all concerned. The remedy here invoked by appellants was, for the purpose of this appeal, conceded by the court to be correct, and we are unable to see how appellant’s counsel are in a position to complain of such decision as to remedy invoked; ‘it being favorable to their contention.
The order appealed from is affirmed. Let judgment be so entered.