20 Or. 154 | Or. | 1890
— Two questions are presented by this record: (1) That the petitioners as relators do not have such an interest in the subject matter as to authorize them to institute such a proceeding, and (2) that the petition does not state facts sufficient to constitute a cause of action, in that it does not show that the town of Burns in the election received a majority of the votes cast for a permanent county seat, as found by th e canvass of such votes. Upon the first point, the contention is, that the fact that the petitioners are residents, legal voters and taxpayers of Harney county does not vest in them any particular interest or right distinct from the public at large. Our statute provides that the writ shall be allowed by the court or judge thereof, upon the petition, verified as a complaint in an action, of the party beneficially interested. (Hill’s Code, § 594.) It has been held that a petitioner who is a taxpayer within the district of 'which the defendant is assessor is “ a party beneficially interested ” in having all the taxable property in the district assessed. (Hyatt v. Allen, 54 Gal. 353). And it would seem, upon like principle, that the petitioners who are voters and taxpayers within the county of which the defendant is county clerk is “a party beneficially interested” in having the records of the county clerk’s office at the county seat of the county, and is, therefore, a proper party to petition for the issuance of the writ. But if there should be any doubt on the suggested analogy to justify its
In some of the states there is a constitutional provision restricting the removal of the county seat without the consent of the majority of the legal voters of the county, and in such cases, where two or more questions are submitted at the same election, it has been held that it must appear that a majority of the voters at that election had cast their votes in favor of removal before the county seat could be changed. Section 5, article VII, 111. Const., provides that “No county seat shall be removed until the point to which it is proposed to be removed shall he fixed by law, and a majority of the voters of the county shall have voted in favor of its removal to such point.” In People ex rel. v. Wiant, 48 Ill. 263, where this constitutional provision was interpreted, it was held that where an election on the question of the removal of a county seat happens to be held at the 'Same time there is another election, as for a circuit judge, the votes cast on the single question of removal will not govern as to whether a majority of all the legal votes of the county were given in favor of removal, but it must appear that a majority of all
Where county seats have been located, and there are constitutional provisions restricting such removal to the majority of the legal voters of the county, or without the consent of the majority of the electors of the county, the reasons are various and manifest why it has been construed and held under constitutional restrictions of this character to mean a majority of all the votes cast at such election, when there are means of ascertaining that fact, as by the vote for some county officer at the same election. But in this state there are no constitutional restrictions in respect to this matter, and the intention of the statute must be collected from its language and the purpose it was designed to subserve. It is not the case of the removal of a county seat once permanently located, but of a new county with its county seat temporarily located, and an act of the legislature providing a method for the voters of the county to determine the place where their county seat may be permanently located. The only question, then, involved is the construction of the section cited. Does it mean a majority of all the votes cast at such general election, or a majority of all the votes cast on the question of the location of the county seat? While the section provides that the question of the location shall be submitted to the voters at the next general
It follows that the judgment must be reversed and the cause remanded with directions to proceed in accordance with this opinion.