Barrett v. Ashmore

Atkinson, J. 1. When, under the Civil Code, § 486, a petition is presented to the ordinary of a county for removal of the county-site, and it appears affirmatively that “two fifths of the poll-taxpayers (as shown by the tax-receiver’s digest last made out)” signed the petition, it is the duty of the ordinary to call an election for the purpose of submitting the question of removing the county-site to a vote of the people; but if, in order to find that the petition contains the requisite two fifths, it is necessary for the ordinary to act upon extraneous evidence, explaining that certain names upon the digest, though different from names signed to the petition, refer to the same persons, and that certain names on the digest last made are persons deceased or removed from the county since the digest was made, there would be no absolute duty to call the election; and after refusal of the ordinary in such case to call the election, as prayed, the writ of mandamus would not issue to compel him to do so. 2. Under the ruling announced in the preceding headnote, the petition, as amended, was subject to general demurrer, and the proposed amendment was not sufficient to render it otherwise. Judgment affirmed. All the Justices concur, except Bill, J., not presiding.