People ex rel. Darnell v. County Commissioners

Maxwell, J. The principal question presented in this case is the sufficiency of the notice given of the election, to be held for the purpose of a re-location of the county seat. Cooley, in his work on Constitutional Limitations, says: “ "When, however, both the time and place of an election are prescribed by law, every voter has a right to take notice of the law, and to deposit his ballot at the time and place appointed, notwithstanding the officer whose duty it is to give notice of the election has failed in that duty. The notice to be thus given is only additional to that which the statute itself gives, and is prescribed for the purpose of greater publicity; but the right to hold the election comes from the statute, and not from the official notice. * * In some cases preliminary action by the public authorities may be requisite before any legal election can be held. If an election is one which a municipality may hold or not, at its option, and the proper municipal authority decides against holding it, it is evident the individual citizens must acquiesce, and that any votes cast by them on the assumption of the right must be altogether nugatory. The same would be true of an election to be held after proclamation for that purpose, where no such proclamation has been made.” Cooley’s Con., Lim., 603. Section eight of the act in relation to county seats provides : “ Whenever the inhabitants of any county are desirous of changing their county seat, and upon petition, being presented to the county commissioners, signed by two-thirds of the qualified electors of the county, it shall be the duty of the county board, in the notices for the next general election, to notify said electors to designate on their ballots at said election, the place of their choice for county seat; and if, upon canvassing the votes so given, it shall appear that any one place has two-thirds of the [252] votes polled, such, place shall be the county seat.” General Statutes, 229. It is contended by the relators that the notice in this case is sufficient, and that the law in regard to notices of this character is merely directory; and if a vote is taken in pursuance of a general notice of this kind, at which any locality has two-thirds of all the votes cast, it should be declared the county seat. In the case of The People v. County Officers of St. Clair, 15 Mich., 85., it was held, that where the board of supervisors by a vote of two-thirds, resolved that the county seat of Saint Clair should be removed to Port Huron, provided “suitable guaranties ” should be given within ninety days for the erection of county buildings, free of cost to the county, but submitted to the popular vote the simple question of removal without including the proviso, the submission was void, as the law contemplates that the people and supervisors shall vote on precisely the same question.” The testimony in the case before us shows, that while two-thirds of the votes cast on the question of county seat were cast for Aurora, yet a large number voted only “for or against removal.” It is clearly apparent from the evidence, also, that the matter was not fully understood by the people of the county, and there was no fair submission of the question. It is an imperative requirement in elections of this kind, that the notice of election should in all respects conform to the law so as to apprise each citizen of the county of the nature of the election, so that he may by ballot express his chioics for the county seat. Lake, Oh. J. and Gantt, J., concurring, the writ must be refused. Application denied. Before filing answer in this cause, Marquette, attorney [253] for respondents, desired to know the effect of filing a demurrer instead of an answer. The court, per Lake, Ch. J., announced the rule to be that in this class of cases the only pleadings allowed would be the application for the writ, and the answer as contemplated by the code. Parties might file a demurrer, but if the same was overruled, the writ would issue and no further pleadings be allowed.