162 P. 164 | Mont. | 1916
Lead Opinion
delivered the opinion of the court.
Application for mandamus. The affidavit in support of the application, stripped of immaterial matters, discloses these facts:
On July 10, 1916, a petition was filed with the clerk of Sheridan county, addressed to the board of commissioners, asking that an election be ordered by the board to letermine whether or not intoxicating liquors should be sold within the county. The board convened on July 20 to consider the petition. Between that date and July 22, and while the board had the petition under consideration, a supplemental or additional petition was presented. This the board received and considered with the original petition. There were in the meantime presented by a number of signers of these petitions other petitions asking that their names be omitted from the original and supplemental petitions. Later some of these latter presented still other petitions requesting that their names be retained in the list of signers and considered for the purpose of determining the sufficiency of the original and supplemental petitions. The board thereupon adjourned until July 31. After having had all the petitions under consideration from that date until August 2, the board granted the withdrawal petitions, disregarded the petitions retracting the withdrawals, and, concluding that the signers of the original and supplemental petitions who possessed the statutory qualifications to sign them were not sufficient in number, refused to order the election. The board made findings in substance as follows: (1) That the original petition was signed by 1,289 tax-paying electors; (2) that the supplemental petition bore the names of 192 tax-paying electors; (3) that the whole number of tax-paying electors whose names appeared on both petitions was 1,481; (4) that of these, 457 had withdrawn their names; (5) that after deducting the names so withdrawn, there remained upon the original and additional petitions the
When the board announced its decision, the relator, a resident and tax-paying elector of the county and qualified to sign a petition for an election, applied to the district court for a writ of mandate to compel the defendants to reassemble as a board and order the election. It is demanded that the defendants be required to reassemble and include in the count the names omitted from the signers of the original and supplemental petitions, and also the names of those who retracted their withdrawals therefrom, and that they, as a board, order the election. In answer to the alternative writ, the defendants appeared by general demurrer and motion to quash, on the ground that the facts stated in the affidavit did not warrant relief. The demurrer and motion were sustained, and judgment went for the defendants. The relator has appealed.
In view of the foregoing remarks, the allegation in the affidavit that the names of all the petitioners appear upon the official register was not necessary. Nevertheless its presence therein does not impair the relator’s title to relief, if the material facts stated warrant it.
The original and supplemental petitions were signed by 1,694 persons who were tax-paying electors. Assuming that the board properly excluded the names of all the 457 persons who withdrew, there remain 1,237 qualified signers, or more than one-third of the tax-paying electors in the county. The district court should have overruled the demurrer and motion, and heard the application on its merits.
It was held by the court in Horton v. Botts, supra, that the withdrawal may be revoked at any time before it has been acted upon by the petitioned body, restoring the petitioner to his original position. It will be observed that the revocation had been permitted by the county court, and the propriety of it was
The judgment is reversed and the district court is directed to overrule the demurrer and motion.
Reversed, and remanded.
Concurrence Opinion
I concur in the result; but I am not convinced that supplemental petitions and withdrawals should be considered while “withdrawals from withdrawals,” so called, before the board at the same time, should be ignored. Difficulties exist in the formulation of any rule for so informal a proceeding, though the statute seems to suggest that the petition should be judged as of the date it is presented, without additions or subtractions signified after that time. If, however, the object of the proceeding is to ascertain whether the requisite proportion of the taxpaying electorate favor the purposes of the petition at the time it is finally submitted, and this is to be gleaned from the petition as aided by additions and subjected to deductions for withdrawals up to that time, it seems to me