State ex rel. Kaufman v. Martin

Per Curiam: The question presented is whether the petition presented to the board of county commissioners of Lyon County is signed by a sufficient number of qualified taxpaying electors to [204] require the calling of an election to determine whether the county-seat shall be moved. Section 5007 of the Compiled Laws provides: "SectioN 1. 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. * * * The place receiving a majority of all the votes cast at such election shall be declared the county-seat.” Arid section 5010 provides: "Sec. 4. Every petition for the purpose mentioned in section one 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 the 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.” It is admitted that the signers of the petition who were on the last assessment roll numbered less than three-fifths of the taxpaying electors whose names appear on both the registry list of the last general election, held in 1908, and on the registry list of the last special election, held in February, 1909; but the number of these petitioners is more than three-fifths of the taxpaying electors registered at the special election, and on behalf of the relators it is contended that this is sufficient, that the lists at the special election being the latest and only ones for the election of 1907 are the lists for that year, and control and supersede the lists of the general election held- in the previous fall. After a careful reading of the statute, we are not inclined to adopt this view, and we think the language quoted should be given a broader construction, as evidently intended by the legislature. It will be noticed that the language in section 1 of the act that "whenever three-fifths of the [205] qualified electors, each elector being a taxpayer of said county, as appears by the last assessment roll, who have taken or subscribed to the oath or affirmation prescribed by law for the registration of electors in this state, shall petition” and section 4, do not make a limitation to the lists of a special election, nor does any other language in the statute. The construction for which relators contend would be equivalent to interpolating, after the words "last assessment roll,” in section 1, or in section 4, "and as appears by the registry list of the last election, whether general or special.” By a fair construction of the language in section 4, "as appears by the registry list of said district, or the affidavits on file in his office of persons not registered at the general or special election, but who are qualified electors” it was evidently intended to include the names appearing on the lists of both the general and special election and of persons making and filing the affidavit required for registration. The qualifications of a petitioner are that he be a taxpayer whose name appears on the last assessment roll, and that it be shown by the lists of the last general or special election or by affidavit 'that he is a qualified elector. We do not think the fact that he may have failed for any reason to register for a special election, as in effect claimed by relators, should disqualify him if he possesses the substantial qualifications and is a taxpayer and voter as indicated. The question has been raised regarding the forty-two persons who appear on the roll as paying taxes only in a partnership capacity. Under the language and purpose of the statute their names should be included, for it provides for all taxpaying electors whose names appear on the last assessment roll, without any limitation as to whether they pay taxes individually or as partners. In either instance their names appear, and we see no good reason why one whose name appears as a member of a large merchandising, farming, stock-raising, or other business firm should not be considered and included as well as one who may be taxed only on a town lot valued at a trifling amount. Extensive argument has been made regarding the right of twenty-one of the petitioners to withdraw their names and of thirteen of these to rescind their withdrawal and allow their [206] names to stand on the original petition, and a number of cases have been cited sustaining sucli right; but it is not necessary for us to consider at length or determine this question, for, regardless of any such right of withdrawal or rescission, the petition lacks the support of the necessary three-fifths of the taxpaying electors appearing on the last assessment roll. Application for the writ is denied.