Wilson v. Bartlett

SULLIVAN, J. This is an appeal from a decision of the district court of Fremont county — from an order or judgment submitting to the legal voters of said county the question whether the county seat of said county should be removed from St. Anthony to Rexburg. It appears from the record: That a petition for the removal of said county seat, containing two thousand three hundred and forty-two signatures, was duly filed in the office of the clerk of said district court in and for said county, as provided by section 106 of an act of the legislature providing for the holding of general and special elections, etc. (See Laws 1899, p. 33.) That, under the provisions of section 109 of said act, Charles. P. Bartlett filed his affidavit of contest, contesting the right of certain signers of said petition to sign the same, and based his right of contest on the two following grounds, to wit: “1. That all those persons whose names appear on said list from page 1 to page 23, inclusive, were not at the time of signing — 274 — said petition, nor never have been, registered as is required by law. 2. That each and all of the names appearing on pages 24 to 26, inclusive, of said list, are the names of persons who did not write or cause to be written opposite their said names the name of the precinct in which they then resided, as is required by law.” The transcript shows that the first specification of said affidavit contained 888 names, and the second contained 139 names. A motion was made by counsel for the petitioners, who are respondents here, to strike said affidavit from the files for the following reasons, to wit: “1. That the matters in said writing, protest, or remonstrance upon which the same appears to be based are each and all redundant, irrelevant, frivolous, and the same contains no legal objection, or ground of objection whatever, to said petition for removal, or the form or substance thereof, or to the qualification or sufficiency of the signers thereof; that the said so-called written protest or remonstrance was not filed with the clerk of said court, or any court, within the time allowed by law.” Thereafter said motion was heard by the court, and denied in so far as the same was made upon the ground that the affidavit, of contest was not filed in time; and it sustained said motion upon the ground that the matters set up. in the affidavit were insufficient in law to authorize the court to strike out the names of the petitioners referred to in said affidavit and list filed therewith, and thereupon it was ordered that said affidavit and list be stricken from the files. Thereupon counsel for contestant presented and asked leave to file the written request made and signed by one hundred and forty-eight persons who had signed said petition to withdraw their names from said petition. Counsel for the petitioners objected to the receipt and filing of said withdrawals on the ground that they were not made in time, and that it was incompetent, irrelevant, and immaterial for such persons to withdraw their names from said petition; and the court sustained the objection, and refused to permit such withdrawals to be filed. Thereupon the contestant, through his counsel, moved the court for leave to appear by counsel in opposition to the proofs to be offered in support of the petition, and to cross-examine witnesses sworn — 275 — in support thereof. Under the objection of counsel for the petitioners, the court denied said motion. After hearing certain testimony, the court made its finding of facts and conclusions of law, and judgment was entered authorizing the election prayed for in said petition. Among other facts, the court found that at the last general election held in said county the greatest number of votes cast for any officer (state or county) were cast for sheriff, and that the total number of votes cast for sheriff at that election was two thousand five hundred and eighty, and that a majority of that number was one thousand two ninety-one, and that, owing to the great distance necessary to be traveled, and long time to be consumed, in procuring the attendance of witnesses, no proof was offered or taken as to the qualification of the signers, or the genuineness of the - signatures, upon the petition of those signing it from six precincts in said county, and containing six hundred and thirty-six names. And the court made no finding as to said names, as it concluded it was unnecessary to make any finding thereon, for. the reason that after deducting said six hundred and thirty-six names from the total number of names on said petition, and also deducting therefrom thirty names that the court found were not properly on said petition, the petition contained one' thousand six hundred and seventy-three names, or three hundred and eighty-two signatures more than a majority of the votes cast for sheriff in 1898, at the last general election. Five errors are assigned. The first is that the court erred in striking appellant’s affidavit and list of names contested from the files. The affidavit and list specify that eight hundred and eighty-eight of the signers of said petition were not qualified to sign the same, for the reason that they were not registered as required by law. It is contended by counsel for appellant that under the provisions of section 2, article 6, of the constitution, a person is not a qualified elector and qualified to sign such petition, unless he is first registered. Said section is as follows: “Except as in this article otherwise provided, every male citizen of the United States, twenty-one years old, who has actually resided in the state or territory for six months and in the county where he offers to vote, thirty days next preceding the — 276 — day of election, if registered as provided by law, is a qualified elector; and until otherwise provided by the legislature, women who have the qualifications prescribed in this article, may continue to hold such school offices, and vote at such school elections, as provided by the laws of Idaho territory.” We cannot agree with the contention of counsel for appellant. We do not think that registration is a substantive qualification of an elector in this state, although said section of the constitution declares that persons having certain qualifications, and, in addition to those, if they be registered, they are qualified electors. We do not think that registration is intended as one of the substantive qualifications of an elector. Registration was intended only as a regulation of the exercise of the right of suffrage, and not a qualification for such right. Section 35 of the election laws of 1899 provides that registration is prima facie evidence of the right to vote. Section 34 of that act provides, among other things, that the registrar shall register only qualified electors. If registration is one of the qualifications of an elector, the registrar is prohibited from registering any person who has not theretofore been registered; and, after a most careful examination of the several provisions of the constitution in which the terms “elector” and “qualified elector” are used, we conclude that said terms are used interchangeably, and that an elector is a qualified elector. Section 3 of article 18 of the constitution provides that no county seat shall be removed unless upon a petition of a majority of the qualified electors of the county, and unless two-thirds of the qualified electors of the county voting on the proposition at a general election shall vote in favor of such removal. The framers of the constitution did not undertake to prescribe a rule by which a majority of the qualified electors should be ascertained, but left that rule to be established by the legislature; and by section 106 of the act providing for elections the legislature has declared that a petition for the removal of a county Seat must contain the names of legal voters at general elections equal in number to a majority of all votes cast at the last general election in such county. Some might think that a better rule could be established for finding the number that — 277 — must sign the petition, but it is sufficient to say that the legislature has established a reasonable rule, which it had a right to do. Under the laws of this state, the registration of voters is for only a single election. An elector must register every two years. By the provisions of section 35 of our election laws of 1899 (page 41), the clerk is required to preserve the registration list for only one year. So under that law such lists are not required to be preserved, as a public record or otherwise, for any purpose whatever, beyond one year, and all electors are required to register every two years if they desire to vote. We think from a consideration of all the sections of the constitution bearing upon the question of electors, and provisions of our law referring to the same subject, that it was not the intention to require a signer of a petition for the removal of a county seat to be a registered voter. Therefore, the specification in said affidavit that eight hundred and eighty-eight of the signers of said petition were not qualified to sign the same, because they were not registered electors, was not a valid objection, and was properly stricken out by the court. And the further specification in said affidavit that one hundred and thirty-nine of the persons who signed the petition had not written opposite their names the name of the precinct in which they resided was properly denied by the court. It appears that a person signed his name to said petition, and the name of the precinct in which he lived was written opposite his name. Subsequent signers of said petition simply made the ditto mark, indicating thereby that they resided in the same precinct as the first signer. While it might be better for each signer to write in full the name of the precinct in which he resides, yet we think the ditto mark, which has a meaning well understood by all of the people, was sufficient in this case. The affidavit of the contestant must show that the list of names that he desires to contest, if stricken from the petition, would reduce the number of names on the petition to less than the number required by law; and, if it does not do that, the trial court ought to deny his contest. In the case at bar the court found that there were two thousand three hundred and thirty-nine names on the petition. The contestant raised ob — 278 — jection by his specifications to only one thousand and twenty-seven of those names. Deducting said last number from the total number of names on said petition, there would still have remained on said petition one thousand three hundred and twelve names — twenty-two more than the law actually required, conceding that registration is a necessary qualification óf a signer of such petition. The court in its findings, did not pass upon sis hundred and thirty-six names on the petition, giving his reason therefor. When a petition is presented to a court for the removal of a county seat, and all of the signers to said petition state, over their signatures, that they are qualified electors of such county, the petitioners make a prima facie case, and no further evidence of the qualifications of such signers is required, unless a contestant appears as provided by law, and enters his contest, That being true, the court would have been justified in finding, without further proof, that all of the signers to said petition were qualified electors, as no valid contest was entered against any of the names upon said petition, for the reason that the specifications in said contestant’s affidavit raised no valid objections to the qualifications of any of the signers of said petition. The court did not err in striking said affidavit and list from the files. We have considered the other errors assigned by counsel for appellant, and find no errors in the rulings complained of. ‘The judgment of the court must be affirmed, and it is so ordered, with costs of this appeal in favor of respondents. Huston, C. J., concurs.