31 Nev. 493 | Nev. | 1909
By demurrer respondents question the sufficiency of the application for a writ of mandate by which it is sought to compel respondents to order an election for the purpose of enabling the voters of Lyon County to determine whether the county-seat should be moved.
Among other things it is alleged in the application that on the 7th day of June, 1909, there was filed with respondents, as the board of county commissioners, a petition, duly accompanied by the proper certificate of the registry agent of each of the districts where the persons signing the same resided, praying for the removal of the county-seat from the town of Dayton; that it appears by the registry lists of the several precincts 962 qualified electors were duly registered at the last election in that county, which was a special one; that in addition tAvo qualified electors who did not register for the last election executed and filed with the registry agents of their respective precincts affidavits showing them to be qualified electors of the county; that of the qualified electors whose names appear on the registry lists of the last election, or, who, though not registered at such election, were nevertheless shown
It is provided by section 5007 of the Compiled Laws: " Whenever three-fifths of the qualified electors of any county of this state, each elector being a taxpayer of said county, as appears by the last assessment roll, who have taken and subscribed to the oath or affirmation prescribed by law for the registration of electors in this state, shall petition the board of county commissioners of such county for the removal or location of the seat of justice of said county, the said county commissioners shall, within sixty days thereafter, cause an election to be held at the various places of voting in said county, the said county commissioners giving thirty days’ notice in some newspaper published in the county or by posting written or printed notices at the several voting precincts in the county. * * *” Section 5010 directs: "Every petition for the purpose mentioned in section 1 of this act shall be accompanied by the certificate of the registry agent of the district where the persons signing such petition reside, showing that all persons whose names are signed to said petition are qualified electors of said county, as appears by the registry list of said district, or the affidavits on file in his office of persons not registered at the last general or special election, but who are qualified electors of said county. * * * ”
Respondents seem to rely largely upon State v. County Commissioners of Eureka County, 8 Nev. 310, and State v. County Commissioners of Washoe County, 6 Nev. 104. The statute and the facts and circumstances controlling those cases are dif
In the Hess or Washoe County case, the board called an election for a time more distant than provided by statute, and
In State v. Young, 6 S. D. 406, 61 N. W. 165, it was held that the designation of a day for an election is so far directory that, if from any cause no election is held on that day, it is the duty of the board to call an election at the earliest day practicable thereafter and make the necessary provisions therefor.
Quoting in part with approval from high authority, the Supreme Court of Florida, in McConihe v. McMurray, 17 Fla. 261, said: "'So in this country it has been held that an election of municipal officers may be held after the charter day, and that a mandamus may be granted to compel the proper officers to give notice thereof.’ (2 Dillon’s Municip. Corp. 675; Tap. on Mandamus, p. 165.) * * * Nor is it any objection that the precise date at which the election was to be held has passed. (4 East, 142; State v. Baltimore County Commissioners, 29 Md. 523.) Such a doctrine would practically abolish the remedy by mandamus in such cases. The writ does not lie before, but only after, default in the performance of a ministerial duty (Tap. Man. 290; 8 A. and E. 911); and, if it be a good defense to allege that the time fixed for its performance has passed, it is evident that the very ground upon which you must base your application for the writ becomes a sufficient reply to the alternative writ when granted.” See, also, cases there cited, and People v. Trustees of the Town of Fairbury, 51 Ill. 149; People v. Schiellein, 95 N. Y. 124; 26 Cyc. 272.
We are unable to agree with respondents’ contention that section 5007 requires that the petition for removal of county-
Counsel for respondents have sought' to rely upon the well-established rule that mandamus will lie to compel a board to act, but not how to act; and it is urged that, as the board has already acted and denied the petition, it has exhausted its jurisdiction and cannot be required to act again. This would be true, if the act were of a judicial nature and vested the board with discretionary powers; but it confers none, and the language is positive in directing the board to call an election if a petition is filed by three-fifths of the voting taxpayers as shown by the roll and registration certified. (26 Cyc. 192.)
The demurrer is overruled.