State ex rel. Arthurs v. Board of County Commissioners

118 P. 804 | Mont. | 1911

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On June 19, 1911, there was presented to the board of county commissioners of Chouteau county a petition for the creation of a new county, to be known as Hill county, from a portion of Chouteau county. So far as disclosed by this record, that petition was in due form, and met the requirements of Chapter 112, Laws of 1911. The board thereupon by order designated July 17 as the time for hearing the petition and any objections thereto. Prior to the last-named date, there was filed with the board a counter-petition, asking that certain territory included within the boundaries of the proposed county of Hill be allowed to remain in Chouteau county. Omitting the formal portions, that counter-petition reads:

“We, the undersigned, voters of * * * in Chouteau county, Montana, do respectfully petition that Townships 29 to 37 North, inclusive, and Ranges 1 to 10 East, inclusive, bé allowed to remain in Chouteau county, as is' provided for in Substitute for Senate Bill No. 35, 1911 Session Laws.”

This counter-petition was signed by a large number of people, and following the signature was this form of verification:

“State of Montana,

“County of Chouteau,

“John McDowall, John Laird and John A. Arthurs, being first duly sworn, upon oath, each for himself, deposes and says: That he is a qualified elector and taxpayer within the county of Chouteau within the section of said county comprised within Townships 29 to 37 North, inclusive, and Ranges 1 to 10 East, inclusive; that they have each read the foregoing petitions asking that Townships 29 to 37 North, inclusive, and Ranges 1 to 10 East, inclusive, be allowed to remain in Chouteau county, and that they have examined the signatures thereto affixed, and that they each do believe that it is signed by at least one-half of the electors within the said territory comprised within Townships 29 to 37 North, inclusive, and Ranges 1 to 10 East, inclusive, in said county of Chouteau, and that the signatures thereto affixed are genuine, and that each of such persons so signing was a qualified elector of the county of Chouteau at the time of the signing thereof.”

“Subscribed and sworn to,” etc.

On July 24, the board rejected this counter-petition, approved the petition for the creation of Hill county, ordered an election for November 20, and on July 31 adjourned. This proceeding was then instituted by John A. Arthurs, a resident taxpayer of the territory described in the counter-petition, .and a party beneficially interested, for a writ of mandate. The affidavit for the writ sets forth the history above, and alleges that the counter-petition was signed by more than fifty per cent of the qualified electors residing within the territory described in the counter-petition; that the territory sought to be retained in Chouteau county lies contiguous to the boundary line of the proposed Hill county and the boundary line of Chouteau county, and is entirely within the old county of Chouteau. It is then alleged that the commissioners rejected the counter-petition without considering the same, claiming that it was “insufficient in material particulars and by reason of defects [therein] * * * the said board was without jurisdiction to consider same.” An alternative writ was issued, and upon the return the board interposed a general demurrer to the affidavit and a motion to quash the writ. The demurrer and motion were sustained, and a judgment entered, quashing the alternative writ and dismissing the proceedings. From that judgment, this appeal is prosecuted. For want of a better name, and to distinguish the petition to withdraw territory from the petition for the creation of the new county, we have designated the withdrawal petition as a counter-petition.

The proceedings for the creation of a new county under Chapter 112, above, are initiated by filing with the board of county commissioners a petition, describing the territory sought to be included in the new county. Notice is then given that such petition has been filed, and a time is designated for a hearing, which time must not be more than thirty days from the date when such petition was filed. The Act further provides: “At the time fixed for said hearing the board of commissioners shall proceed to hear the petitioners and any opponents and may adjourn such hearing from time to time, not exceeding fourteen days in all.” And again: “On the final hearing said board of county commissioners must, upon petition of not less than fifty per cent of the qualified electora of any territory lying within said proposed new county and contiguous to the boundary line of the said proposed new county and of the old county from which such territory is proposed to be taken, and lying entirely within a single old county, and described in said petition, asking that said territory be not included within the proposed new county, make such changes in the proposed boundaries as will exclude such territory from such new county, and shall establish and define such boundaries.”

If this counter-petition meets the requirements of the statute, the board does not have any discretionary power, but must exclude the territory so sought to be withdrawn, and reform the lines of the proposed new county accordingly. So that the only question, apparently, which can arise before the board upon the counter-petition is: Does it in fact meet the requirements of the statute?

1. It is insisted that the counter-petition presented to the commissioners in this instance was and is insufficient, in that: “It does not mention the meridian or the county, or the state in which the land sought to be withdrawn is located. It fails to state that the territory is wholly within any county, or that it is contiguous to the proposed Hill county, or lies wholly within the old county. ”

The presentation of a counter-petition under this Act presupposes that an original petition has been filed for the creation of a new county, in which original petition the territory to be included in the new county is described; and such original petition had been filed with and was -before the board at the time this counter-petition was presented. The proceeding for the [1] creation of a new county is an entirety, and includes all steps taken from the time the original petition is filed, until a copy of the resolution declaring the result of the election is presented to the secretary of state. Chapter 112, above, has one main purpose running through it, viz., to permit the people directly interested to determine for themselves whether a new county shall be created, -and what territory shall be included within the new county, if it is created, and the statute should be given a liberal construction, to the end that the will of the people affected may be carried out. The board of county com.missioners is not a court. It is distinctly the people’s forum, where the layman can be heard without the interposition of an attorney to represent him. The rigid rules of a court of record have no place in the proceedings of such board. When this counter-petition was presented to the board, which had before it the original petition, describing the boundaries of the proposed new county of Hill, it was the duty of the board to read the counter-petition in connection with the original petition, and determine, if it could, the wishes of the electors who sought to have eliminated certain territory which had been included within the new county, as described in the petition for its creation ; and, if by any fair intendment the intention of the signers of the counter-petition could be determined, it was the duty of the board to give such intention full force and effect; otherwise the very purpose of the statute would be defeated.

It is not the province of the board to ask whether the counter-petition is drawn with all the technical niceties which might be expected from one learned in the law and accustomed to drafting legal documents; but rather it should ask whether it is possible for the board to take the counter-petition, in connection with the other papers and proceedings in the matter, and determine the will of those who signed it. It will be presumed that the members of the board understand the method [2] pursued by the government in its surveys of public land. The board is chargeable with knowledge of the territory included within Chouteau county as now constituted. This court [3] takes judicial notice of the fact that the Montana principal meridian forms the western boundary line of Chouteau county, and that the north line of Township 37 North is the international boundary line, and the north line of Chouteau county; and the board will be held to know these facts also. (Hoyt v. Russell, 117 U. S. 401, 6 Sup. Ct. 881, 29 L. Ed. 914, reversing Russell v. Hoyt, 4 Mont. 412, 2 Pac. 25.)

Each of the persons making the verification to this counter-petition swears that he is an elector and taxpayer within Chouteau county, and within the section of said county comprising Townships 29 to 37 North, inclusive, and Ranges 1 to 10 East, inclusive. By any fair intendment, it must be held that the counter-petition describes the territory sought to be withdrawn, as lying entirely within Chouteau county, not by direct allegation, it is true. It prays that Townships 29 to 37 North, inclusive, and Ranges 1 to 10 East, inclusive, be allowed to remain in Chouteau county. If that territory is not already wholly within Chouteau county, it cannot remain in that county. There cannot be a doubt that the territory sought to be withdrawn from the proposed new county is shown to be entirely within Chouteau county, and therefore within the state of Montana. The only territory within the entire state of Montana which falls within the description given in the counter-petition is comprised within the quadrangle bounded by the Montana principal meridian on the west, the international boundary line on the north, the east line of Range 10 East on the east, and the south line of Township 29 North on the south — the lines connecting points A, B, C, and D on the subjoined map.

It cannot be insisted that the description in the counter-petition shall be more definite and certain than is required in deeds, mortgages, wills, and like instruments which, actually convey property rights. In McDonald v. Payne, 114 Ind. 359, 16 N. E. 795, the general rule applicable to the description in deeds is stated as follows: “A deed will not be declared void as long as it is possible, by -any reasonable rules of construction, to ascertain from the description found therein what property it was intended to convey”; and, speaking to the same subject, the same court, in Calton v. Lewis, 119 Ind. 181, 21 N. E. 475, said: “The inquiry in such a ease is, Could a surveyor take the deed and ascertain from an inspection of it where the land was located?” The deed in question in the last case above contained this description: “The following described tract or tracts of land lying and being on the waters of Crowder creek in the tenth civil district of Lawrence county in range 5, section 1.” It will be observed that neither the state nor meridian is mentioned; but the deed' was acknowledged in Lawrence county, Tennessee, and plaintiffs alleged that it was situated in that state, and the court held that they were entitled to make proof of that fact, and further said: “The true rule upon the subject is that, where the description in a deed or mortgage is so uncertain as to afford no reliable cliie to a more correct and definite description, as in case there is nothing in the instrument to indicate the state, county, or locality in which the land is situate, it will be held void; 'but if, taking all the facts which appear upon the face of the instrument, and- the legal presumptions which naturally flow from those facts, a true description may be supplied by aid of proper averments and proof, the instrument will be held sufficient. (Dutch v. Boyd, 81 Ind. 146; Noland v. State, 115 Ind. 529, 18 N. E. 26.) That part of a deed or contract which relates to the description of the premises should be liberally construed, so as to make the instrument available. (Hannon v. Hilliard, 101 Ind. 310.) And a court will only declare a deed void for uncertainty when, after resorting to oral proof, it still remains mere matter of conjecture what was intended by the instrument. (Roehl v. Haumesser, 114 Ind. 311, 15 N. E. 345, and oases cited.) ”

In Garden City Sand Co. v. Miller, 157 Ill. 225, 41 N. E. 753, the court had under consideration a deed by Jos. V. Brown of 'Chippewa county, Michigan, to Geo. and Theo. Wendell of Mackinac county, Michigan, conveying “fractional section No. 17, Township 39 N., Range 11 West, containing 80.50 acres.” The deed did not mention the county or state in which the land was situated, or the meridian from which it was surveyed, but it was acknowledged in Chippewa county, Michigan, and the court held that it was competent for the plaintiff to show by his evidence that the land was in fact in Chippewa county, Michigan, and said: “The evidence in the record shows that the ancestor of these minors was in control of these lands prior to his death, and the guardian had been in control since. These facts, all considered, are sufficient to apply the deed of Brown to the Wendells (and under which possession was taken) to the land described in the patent and in the guardian’s deed tendered appellant. Any fact or circumstance by which the mind is convinced as to what tract was intended to be conveyed will be resorted to, instead of treating the description as a patent ambiguity. (Pursley v. Hayes, 22 Iowa, 11 [92 Am. Dec. 350]; Mecklem v. Blake, 19 Wis. 419; Russell v. Sweezey, 22 Mich. 235; Billings v. Kankakee Coal Co., 67 Ill. 489; Atwater v. Schenck, 9 Wis. 151; Clark v. Powers, 45 Ill. 283.) It was not error to admit in evidence the deed from Brown to George W. Wendell and Theodore Wendell as prima facie conveying the lands in controversy.”

In Bryan v. Scholl, 109 Ind. 367, 10 N. E. 107, there was considered a decree of foreclosure, which ordered the sale of certain land in Township 21 North, Range 1 West, but omitted to state that the land was situated in Clinton county, Indiana. In disposing of the matter, the court said: “The foreclosure proceedings were commenced, and the decree rendered, in the Clinton circuit court. No.objection was made to the jurisdiction of the court. The mortgage, a copy of which was made part of the complaint in the foreclosure proceedings, described the land as being in Clinton county. The decree and notice described the land correctly, except that they did not recite in terms that it was situate in Clinton county, in the state of Indiana. Both the decree and notice did, however, contain the recital that the several tracts of land described were all in ‘Township twenty-one (21) North, of Range one (1) 'West.’ The decree on its face directed the sheriff of Clinton county to sell the lands therein described in default of payment of the sum of money found due. It will be presumed, therefore, to say the very least, that the lands were in the state of Indiana, and, if in Indiana, since Clinton county is the only county in the state which contains within its boundaries a township and range answering the description above set out, it conclusively follows from such description that the land was in Clinton county.”

In Noland v. State, 115 Ind. 529, 18 N. E. 26, there was before the court for consideration a mortgage which did not state that the land encumbered was in any county or state, but the court held that it was not void, and said: “It was delivered to the auditor of Montgomery county to secure a loan of the common school fund of the state, and it shows upon its face that it was signed and acknowledged in that county by mortgagors residing therein. Taking into consideration the facts, which appear upon the face of the mortgage, that the mortgage was signed and acknowledged in Montgomery county, by residents of that county, and that the law required the auditor to take security on land situate in that county, and the legal presumptions which flow from those facts make the present a case in which a true description may be supplied by the aid of proper averments in the complaint.”

In Mee v. Benedict, 98 Mich. 260, 39 Am. St. Rep. 543, 57 N. W. 175, 22 L. R. A. 641, there was before the court an instrument in writing which purported to convey an interest in standing timber, but which omitted the name of the state in which the timber was situated; but the court held it not void, and said: “Pease, the maker of the instrument, had title of record to these lands. Although the acknowledgment was taken in Chicago, the certificate of the official character of the notary was appended and the paper placed on record in Manistee county, where the lands are situated. 'This, we think, sufficient evidence to identify the lands sought to he described.”

In Devine v. Burleson, 35 Neb. 238, 52 N. W. 1112, there was before the court the question of the sufficiency of a complaint which described the land involved as “the N. W. %, section 20, Township 29, Range 14 West.” The court held the complaint sufficient, and said: “It is insisted that the description is not sufficiently definite, as neither the meridian, county, nor state is given. The objection is untenable. The description is not defective, for the premises are definitely described. There is no uncertainty as to the lands intended. True, the meridian is omitted, but the courts of this state will take judicial notice of the mode of the general government of surveying public lands, and that there is but one meridian line in this state. We know that there is but one tract of land in this state to which the description contained in the complaint is applicable, and that is situated in Holt county. The premises could be established and identified by a competent surveyor without difficulty.”

In Atwater v. Schenck, 9 Wis. 151, the court considered a bond for a deed which described the land as the “southwest of the southwest quarter of section three, Township ten, North of Range fourteen East, excepting ten acres formerly deeded by John Corwith to Wm. H. Dearborn, out of the southwest corner,, containing thirty acres, more or less.” The court said: “It will be seen that the county and state are not mentioned. But still' the courts will take judicial notice of the government surveys, and the legal subdivisions of the public lands; and, as the parties-to this contract all reside in this state, will presume that the land referred to is situated in this state, at least until something to the contrary appears. But, moreover, the plaintiffs in error offered to identify the land by a witness, and also by the deed referred to in the bond. This was competent evidence, and should have been received.”

In Kykendall v. Clinton, 3 Kan. 85, the court had before it a complaint which described the property involved as follows:, “The hotel commonly called the Clinton House, in Indianola, Shawnee county, together with- all the rooms, houses, garden, lots, etc., used in connection with the same.” Speaking of this description the court said: “For -aught that we know, the description may have been perfect and accurate. Certain property in Indianola would be as likely to be known as belonging to the Clinton House, as the house itself by that designation. Such a description would be good in a deed, provided the prop-, erty could be ascertained that was conveyed, -and whether it could be so ascertained would be a question of fact, and not of law. ’ ’

In Ladnier v. Ladnier, 75 Miss. 777, 23 South. 430, the deed in question omitted the county and state in which the land was situated, but it was held not void for uncertainty, and this doctrine is announced by the courts generally. (Butler v. Davis, 5 Neb. 521; Lewis v. Seibles, 65 Miss. 251, 7 Am. St. Rep. 649, 3 South. 652; Scheuer & Bro. v. Kelly, 121 Ala. 323, 26 South. 4.)

2. It is insisted that the counter-petition does not disclose the facts which it is necessary for the subscribers to prove in order to justify the board in withdrawing the lands mentioned, viz.: (a) That the- territory sought to be withdrawn is within and contiguous to the boundary line of the new county, and contiguous to the boundary line of the old county; (b) that it is signed by at least fifty per cent of the qualified electors of the territory sought to be withdrawn; and (c) that the territory sought to be withdrawn lies entirely within Chouteau county.

(1) It does not appear affirmatively from the counter-petition that this territory sought to be withdrawn lies within and is contiguous to the boundary line of the proposed new county, and contiguous to the boundary line of the old county. It is alleged in the affidavit for this writ that such are the facts, [4] and for the purpose of this appeal those allegations are to be taken as true against the demurrer and motion to quash. If the original petition for the creation of the new county contains a particular description of the boundaries of that proposed county as required by law, then a reference to that petition would disclose at once these facts, which are taken to be true.

(2) While it does not appear from the face of the counter-petition that it is signed by at least fifty per cent of the qualified electors of the territory sought to be withdrawn, this fact is [5] recited in the affidavit verifying the counter-petition, and this is sufficient prima facie showing of that fact. (State ex rel. Bogy v. Board of County Commissioners, 43 Mont. 533, 117 Pac. 1062.)

(3) As intimated above, this court takes judicial notice of the fact that the lands described in the counter-petition lie entirely within Chouteau county.

But is it necessary that the counter-petition recite these facts? The statute does not require that such withdrawal petition assume any particular form, and neither does it in terms demand that it contain any particular matter, save the prayer for the [6] relief sought. It is, however, clearly implied that it shall contain a description of the territory sought to be withdrawn, but beyond this it does not go. That the other facts may be made to appear by evidence is clearly indicated.

Our attention has not been directed to any decided case upon the particular character of petition here involved, but analogous cases may be found, wherein petitions have been considered, as, for instance, petitions for laying out roads, removing county seats, calling local option elections, and the like, and there is not any difference in principle between them and a counter-petition presented under this statute of ours. The courts are not in harmony in their decisions as to whether such petitions shall recite all the facts necessary to be proved, but the decided weight of authority is to the effect that such recitals are not necessary, unless required by the statute itself. The statute of California, relating to laying out public highways, provides that “any ten freeholders who will be accommodated by the proposed road, two of whom must be residents of the road district wherein any part of the proposed road is situated and who are taxable therein for road purposes, may petition in writing, ’ ’ etc. (Sec. 2681, California Pol. Code.) Section 2682 provides: “The petition must set forth the general route of the road * * * and the names of the persons over whose land the same is to run. * * # ” The question arose as to whether, in addition to the facts required to be stated by section 2682 the petition should also state that it was signed by ten freeholders who would be accommodated by the proposed road, and that two of the signers were resident taxpayers of the district wherein any part of the proposed road is situated. In disposing of the question, the court, in Humboldt County v. Dinsmore, 75 Cal. 604, 17 Pac. 710, said: “It will be perceived at a glance that the requirements for a proper petition under the statute do not include an allegation that the signing petitioners are ten freeholders of the road district, and taxable therein for road purposes, wherein the proposed road is to be constructed. This was something, therefore, which the board had the jurisdiction to determine as a fact on the hearing of the matter, from the evidence before them, irrespective of the question as to what the petition may have averred.” Under similar statutory provisions, the same result was reached in Hall v. McDonald, 171 Ind. 9, 85 N. E. 707, where the court said: “In proceedings to establish or vacate highways in this state, the statutes have uniformly required that the petition should be signed by ‘twelve freeholders of the county, six of whom shall reside in the immediate neighborhood of the highway proposed to be located,’ and it has been held that it was not necessary to the sufficiency of the petition that said facts be alleged herein.” And to the same effect are Willis v. Sproule, 13 Kan. 257; Bewley v. Graves, 17 Or. 274, 20 Pac. 322; Snoddy v. County of Pettis, 45 Mo. 361; Keyes v. Tait, 19 Iowa, 123; Commissioners v. Ellwood, 193 Ill. 304, 61 N. E. 1033. The same rule is applied to petitions for the relocation of county seats (Mode v. Baisley, 143 Ind. 306, 42 N. E. 727); to petitions for local option elections (Steele v. State, 19 Tex. App. 425; State v. Smith, 38 Mo. App. 618); and to petitions for the issue of bonds (Cleveland v. City Council of Spartanburg, 54 S. C. 83, 31 S. E. 871).

Since this counter-petition recites all the facts which‘the statute requires it to recite, we think it is sufficient, and that the additional facts may be shown upon the hearing without being specially alleged.

3. It is next urged that mandamus is not an appropriate remedy: (A) Because the time within which the board could consider such counter-petition has expired. (B) Because the act of the board in rejecting the counter-petition as insufficient was judicial or quasi-judicial in its nature.

(A) Chapter 112, above, apparently contemplates that the board shall determine all matters up to and including the order for the election within forty-four days from the date upon which the original petition was filed. Since we have determined that the counter-petition is sufficient, it was and now is the duty of the commissioners to hear evidence in support of it, and, if the necessary facts appear, to so far reform the lines of the proposed [7] new county as to exclude this territory. This duty is absolute — one resulting from the office and specifically enjoined by law. To say that the courts are helpless to compel performance of such a duty, merely because the time within which the duty should have been performed has elapsed, is tantamount to holding that a public official, by delaying action until the time designated by law for aetion has expired, may defeat the will of the people as expressed by the legislature, and that there is not any redress for those who are injured by such nonaction. Cases may arise where the courts are not able to render any adequate assistance, but this is not one of them. The board will not be heard to say that it is too late to do that which it ought to have done at the proper time, or to-take advantage of its own mistake to deprive these counter-petitioners of a right, which the law secures to them. (State v. Canvassers of Choteau County, 13 Mont. 23, 31 Pac. 879; High on Extraordinary Legal Remedies, 14; Tazewell v. Herman, 108 Va. 416, 60 S. E. 767, 61 S. E. 752; Bank v. Arthur, 12 Colo. App. 90, 54 Pac. 1107; State v. Philips, 96 Mo. 570, 10 S. W. 182.)

(B) Assuming that the hoard acted as a gwasi-judicial body, still we think this question is set at rest in this state by the decision in Raleigh v. District Court, 24 Mont. 306, 81 Am. St. Rep. 431, 61 Pac. 991, in which it is said: “Refusal to take [8] jurisdiction, or, after having acquired jurisdiction, refusal to proceed in its regular exercise, or the erroneous determination of a preliminary question of law, upon which the court refused to examine the merits, will be corrected by mandamus. The rule that mandamus will not issue to control discretion or to revise judicial action, but only to direct the court to act in such matter, is to be understood as applying only to the act to be commanded by the writ, and not to the decision of purely preliminary questions of law only. If the rule applied to such preliminary questions, then, to use the language of Mr. Hayne, in section 323 of his treatise on New Trial and Appeal, ‘no writ of mandamus could ever issue, and the machinery provided by the Code for trying such questions would be useless. The distinction above stated applies not only where the act to be performed is purely ministerial, such as the signature of a warrant, the payment of a claim, or the like, but also where it is judicial in its naturé.’ ” The court also quoted with approval from Castello v. Circuit Court, 28 Mo. 259, the following: ‘ ‘ Where an inferior tribunal declines to hear a cause upon what is termed a preliminary objection, and that objection is purely a matter of law, a mandamus will go, if the inferior court has misconstrued the law.” In State ex rel. Stringfellow v. Board of County Commissioners, 42 Mont. 62, 111 Pac. 144, a similar question was before us. In that casé, the board erroneously determined that a petition for the removal of a county seat was insufficient, because it was not. signed by a majority of the taxpayers of Chouteau county. Mandamus issued to compel the board to give to the petition its full legal effect. We are unable to make any distinction between that case and the present one, so far as the principle involved is concerned.

The judgment of the district court is reversed, and the cause is remanded, with directions to vacate the order sustaining the demurrer and motion to quash, and to overrule the same.

Reversed and remanded.

Mr. Chief Justice Brantly and Mr. Justice Smith concur.