State ex rel. Fadness v. Eie , 53 Mont. 138 ( 1916 )

ME. CHIEF JUSTICE BEANTLY

delivered the opinion of the court.

Application for mandamus. The affidavit in support of the application, stripped of immaterial matters, discloses these facts:

On July 10, 1916, a petition was filed with the clerk of Sheridan county, addressed to the board of commissioners, asking that an election be ordered by the board to letermine whether or not intoxicating liquors should be sold within the county. The board convened on July 20 to consider the petition. Between that date and July 22, and while the board had the petition under consideration, a supplemental or additional petition was presented. This the board received and considered with the original petition. There were in the meantime presented by a number of signers of these petitions other petitions asking that their names be omitted from the original and supplemental petitions. Later some of these latter presented still other petitions requesting that their names be retained in the list of signers and considered for the purpose of determining the sufficiency of the original and supplemental petitions. The board thereupon adjourned until July 31. After having had all the petitions under consideration from that date until August 2, the board granted the withdrawal petitions, disregarded the petitions retracting the withdrawals, and, concluding that the signers of the original and supplemental petitions who possessed the statutory qualifications to sign them were not sufficient in number, refused to order the election. The board made findings in substance as follows: (1) That the original petition was signed by 1,289 tax-paying electors; (2) that the supplemental petition bore the names of 192 tax-paying electors; (3) that the whole number of tax-paying electors whose names appeared on both petitions was 1,481; (4) that of these, 457 had withdrawn their names; (5) that after deducting the names so withdrawn, there remained upon the original and additional petitions the names of 1,024 tax-paying electors; (-6) that when these petitions were presented to the board there were in the county 3,658 persons who were tax-paying electors; (7) that to authorize the calling of an election as requested, the petitions must have qualified signers to the number of 1,220,or at least one-third of all those who were qualified to sign them; and hence that the petitions did not bear the required number. In addition to the foregoing recitals, the affidavit alleges that the original petition bore the signatures of 1,486 persons who were tax-paying electors, or more than one-third of the electors of the county who were qualified to sign it; that the supplemental petition contained additional signatures, to the number of 208, of persons who were qualified to sign it; that the aggregate of the signers was therefore 1,694; that of the signers of the original petition the board wrongfully omitted from the count 197 names, and from the supplemental petition 16 names, thus reducing the number of qualified signers to 1,481; and that of the 457 persons who requested to have their names withdrawn, 185 retracted the request. It is alleged further that the names of all those who signed the original and supplemental petitions appear upon the assessment-roll for the year 1915, and also upon the official register of voters for the year 1916.

When the board announced its decision, the relator, a resident and tax-paying elector of the county and qualified to sign a petition for an election, applied to the district court for a writ of mandate to compel the defendants to reassemble as a board and order the election. It is demanded that the defendants be required to reassemble and include in the count the names omitted from the signers of the original and supplemental petitions, and also the names of those who retracted their withdrawals therefrom, and that they, as a board, order the election. In answer to the alternative writ, the defendants appeared by general demurrer and motion to quash, on the ground that the facts stated in the affidavit did not warrant relief. The demurrer and motion were sustained, and judgment went for the defendants. The relator has appealed.

[1] 1. At tbe argument the attorney general submitted a motion to dismiss the appeal, for the reason that he had not been served with a copy of the transcript nor with copies of defendants’ brief, as required by Rule IX (123 Pac. xii), and subdivisions 2 and 7 of Rule X (123 Pae.'xii) of this court. From a technical point of view the motion was well made. Inasmuch, however, as service in both particulars was had before the submission of the motion and the state has suffered no inconvenience by the delinquency, the motion is denied. The delinquency by counsel for the relator was evidently due to oversight. This being so, the dismissal would be without prejudice to another appeal. ■ The granting of the motion would therefore serve no useful purpose.

[2] 2. Counsel submit the question, What course must the board have pursued in order to determine the qualifications of the signers of the original and supplemental petitions and the genuineness of their signatures ? The application was addressed to the board in pursuance of section 2041 of the Revised Codes. Considering this section in State ex rel. Eagye v. Bawden, 51 Mont. 357, 152 Pac. 761, we held that- the two qualifications which the signers must possess are: (1) That they must be qualified electors, and (2) that they must be taxpayers. That they possess the latter qualification, it was held, must be shown exclusively by the presence of their names upon the last assessment-roll. When this has 'been ascertained, it must further be determined whether they are qualified electors, or, in the language of the statute, “voters who are qualified to vote for members of the legislative assembly.” The latter expression must be understood to be neither more nor less comprehensive than the former, for all persons who possess the qualifications enumerated in section 2, Article IX, of the Constitution are qualified electors. How to ascertain that the signers come within this class, the statute does not point out. That a person is a taxpayer is not an evidence of the fact that he is also a qualified elector, for he may be a nonresident or an alien, or be affected by some other disability. The assessment-roll could not disclose any information on the subject. So the official register of voters, while it may properly be consulted for such information as it contains, is not conclusive as to who are and who are not qualified electors. A particular name appearing thereon may be that of a person who has removed from the state, or who has died or who has otherwise lost his right to vote. Again, the name of a person may be signed to the petition who is both a taxpayer and a qualified elector within the meaning of the Constitution, and yet his name is not to be found upon the official register. He is none the less a qualified elector and entitled to sign the petition. It is only when the statute requires petitions by electors to initiate proceedings, such as we are now considering, to be signed by registered voters, that the signers must be such. “Registration is no part of the qualifications of an elector and adds nothing to them; it is merely a method of ascertaining who the qualified electors are, in order that abuses of the elective franchise may be guarded against.” (State ex rel. Lang v. Furnish, 48 Mont. 28, 134 Pac. 297.) The statute might have prescribed the requirement, as it does in case of a petition to initiate proceedings to establish a new county (Laws 1915, Chap. 139, p. 301); but, as it does not, an elector whose name is on the last assessment-roll is qualified to sign a petition for all the purposes of this particular proceeding. In State ex rel. Eagye v. Bawden, supra, referring to the office served by the assessment-roll, this language was used: “The last sentence of section 2041 commands the board to determine the sufficiency of the petition by reference to the last assessment-roll. The provision is exclusive. The board is not authorized to consult any other source of information or to receive evidence which does not appear upon that roll.” Taken without reference to the particular point under discussion, the statement is perhaps misleading. It would confine the board to the examination of the assessment-roll only for all purposes. That this is not the import of the excerpt quoted is clear when read in its proper connection. Since the course to be pursued by the board in ascertaining whether the signers are qualified electors is not pointed out, it may undoubtedly resort to any competent source of information available, including the official register, the tes-, timony of witnesses, and, perhaps the personal knowledge of the individual members. (State ex rel. Bogy v. Board of County Commrs., 43 Mont. 533, 117 Pac. 1062; State ex rel. Lang v. Furnish, supra.)

In view of the foregoing remarks, the allegation in the affidavit that the names of all the petitioners appear upon the official register was not necessary. Nevertheless its presence therein does not impair the relator’s title to relief, if the material facts stated warrant it.

[3] 3. It will be observed that the affidavit alleges that the names of the signers of the petitions appear upon the assessment-roll for the year 1915. Under section 2545 of the Revised Codes, the assessor is required to have his assessment-book completed on or before the second Monday of July. It must immediately then be delivered to the county clerk. (See. 2547.) For the year 1916 the assessor was required to have his book completed on or before July 10, because the second Monday fell on that date. In this connection the inquiry is suggested by counsel for defendants, whether the roll of 1916 or that of 1915 should have been used by the board to ascertain the tax-paying qualifications of the signers of the petitions. The purport of the suggestion is apparent. The statute constitutes the assessment-roll which is latest in date the only evidence by which to determine the tax-paying qualification of the signers of the petition. As all those who were taxpayers in 1915 are not necessarily taxpayers in 1916, the affidavit does not show that the names of the signers were upon the last assessment-roll, and therefore does not state a cause warranting the relief demanded. The suggestion is devoid of merit. That the reference in the statute is to the completed assessment-book, which is the basis for the levy of taxes in the county for any year, is made apparent by noting the steps necessary to make it up in its final form: The assessor must list all property in his county in an assessment-book under appropriate headings. (Rev. Codes, sec. ,2543.) When this has been completed and delivered to the clerk as directed, by sections 2545 and 2547, supra,, the clerk gives notice of the fact by -publication, and also that the board of commissioners will meet to equalize the assessments. (Sec. 2547.) The board sits for this purpose from time to time, from the third Monday in July until the second Monday in August. (Sec. 2572.) Its powers and duties in relation to the individual assessments and the changes it may make in them are defined in sections 2573 to 2581. The changes wrought by it must be noted by the clerk and entered on the book in the proper places. (Sec. 2582.) At the conclusion of its sitting the board must fix the rate of taxation for the year. (See. 2598.) The clerk then ascertains the gross sum of all the assessments and transmits it to the state auditor and the state board of equalization. (See. 2606.) Thereupon the assessments of the several counties, as shown by the several assessment-books, are equalized by the state board of equalization. (Secs. 2583-2592.) Such changes as this board may have made -must be noted and entered upon the assessment-book by the county clerk, who must also enter therein the assessments made by the state board upon property assessable only by the state board. (Secs. 2604-2607.) The sum of the corrected assessments of the several counties, with the additions made by the state board of equalization, is the basis for taxation for state purposes at the rate fixed biennially by the legislature. (Sec. 2593.) When the assessments have been equalized and the necessary changes made, the clerk must sum up the values of the different kinds of property assessed to each owner, and also the gross amount of all assessments as fixed by the equalizations. (See. 2604.) He must then calculate and extend to the proper column the amount due from each taxpayer for the year, at the combined rates fixed by the county board and the legislature. (Sec. 2608.) The book is then completed and becomes the basis — or the assessment-roll— for the payment of taxes for the current year. In the even-numbered years it must also be used as the basis for the classification of the several counties provided by section 2975. In view of these considerations it requires no argument to demonstrate that the assessment-book delivered to the clerk on July 10 was only a tentative basis for the levy of taxes for the year 1916, and did not become an assessment-roll until completed by the clerk as above indicated. The roll for the year 1915 was the only one to which reference could be had.

[4] 4. For the purposes of this appeal the allegations of fact contained in the affidavit must be accepted as true. (State ex rel. Arthurs v. Board of County Commrs., 44 Mont. 51, 118 Pac. 804.) It is alleged that the signers of the two petitions to the number of 1,694 were tax-paying electors. This number includes the names (213) dropped from the petitions. Accepting these allegations as true, it necessarily follows that the action of the board was wrong, whatever may have been the basis of it — whether it concluded that the excluded names were not those of taxpayers, or that they were not electors, or that their signatures were not genuine. Counsel argue, however, that the findings which are set out in the affidavit traverse these allegations, and hence that there is disclosed on the face of the affidavit itself an issue of fact which requires an affirmance of the judgment of the district court. This process of reasoning we cannot appreciate.

[5] It was not necessary that the findings be set out in the affidavit. This was evidently done in order to disclose fully the result of the board’s proceedings; but that they were so set out does not impair in any way the force of the allegation that they were without foundation in fact. The truth of them was the ultimate issue tendered by the relator. Instéad of meeting the issue as tendered, the defendants were content to admit their falsity and tender an issue of law as to the sufficiency of the allegations impeaching them. How, it may be asked, can findings which have no basis in fact become impregnable the moment they are assailed by one who has been aggrieved by them? If counsel’s position is maintainable, then it matters not that the findings were the result of the most arbitrary course by the board; they must nevertheless stand as their own vindication. The material fact being admitted as true, viz., that the omitted names were the genuine signatures of tax-paying electors, it was to be accepted as true for all purposes. If these signers were taxpayers and qualified voters, there was nothing left for the board but to perform its imperative duty to order the election. It is of no avail for counsel to say that the board was exercising judicial powers, and in support of its action to invoke the aid of the presumption that its official duty was legally performed. The presumption disappears in face of the admitted fact that the board wrongfully eliminated the names of 213 persons who were qualified to sign the petition, and then refused to order the election. That under such circumstances relief will be granted by mandamus is no longer open to discussion in this jurisdiction. The following cases, though differing from this one in their facts, are amply sufficient to show that the rule is firmly established: State ex rel. Stringfellow v. Board of County Commrs., 42 Mont. 62, 111 Pac. 144; State ex rel. Arthurs v. Board of County Commrs., 44 Mont. 51, 118 Pac. 804; State ex rel. Hauswald v. Ellis, 52 Mont. 505, 159 Pac. 414; State ex rel. Furnish v. Mullendore, ante, p. 109, 161 Pac. 949.

The original and supplemental petitions were signed by 1,694 persons who were tax-paying electors. Assuming that the board properly excluded the names of all the 457 persons who withdrew, there remain 1,237 qualified signers, or more than one-third of the tax-paying electors in the county. The district court should have overruled the demurrer and motion, and heard the application on its merits.

[6] 5. But counsel for defendants contend that the board was without authority to receive and consider the supplemental petition after it had convened on July 20 to consider the original petition. If this contention is sustained and the 457 withdrawals be deducted from the 1,486 signers of the original petition, the remainder is 1,029, or less than the required number. In support of their contention, counsel rely with apparent confidence on the decision in State ex rel. Lang v. Furnish, supra. While they admit that the New Counties Act. (Laws 1913, Chap. 133), which was under consideration in that case, contains an express provision prohibiting the filing of petitions in any form after the date set for the hearing, they insist that though section 2041, supra, does not contain any such express provision, yet since the order must be made “upon application by petition,” the implication obtains that the petition, the basis of the order, must be complete when taken up for examination, and cannot thereafter be aided by additional signatures by way of a supplemental petition. Inasmuch as the statute does not expressly prohibit the presentation of supplemental petitions, we are not disposed to give it the force which counsel would have us give it. True, a sufficient petition is a necessary prerequisite to jurisdiction by the board to order the election. So a sufficient complaint is necessary to enable a court to grant relief in an ordinary action. This necessity does not preclude the court from permitting amendments by an addition to the pleading of omitted material allegations at any stage of the proceeding, in order to furnish a basis for the relief demanded. The statute supra does not provide for an adversary hearing; but assume that this is implied, it seems not out of place to make the additional assumption that the implication is equally as strong that the hearing shall be conducted according to the analogies of ordinary actions. But whether these implications are permissible or not, in view of the fact that proceedings had by a board of commissioners in such cases are always more or less informal, we can see no legal objection to the reception of supplemental petitions at any time during the course of its deliberations, until the matter is submitted for final decision. This view relieves the proceeding of all purely technical features, and at the same time requires the board to observe, and be controlled by, the substance of the application rather than its form. We know of no authority directly in point. The holding in the case of Horton v. Botts, 158 Ky. 11, 164 S. W. 352, cited by counsel for relator, is more nearly in accord with that in State ex rel. Lang v. Furnish, supra, in that the Kentucky court held that under a local option statute, supplemental petitions may be filed at any time before the date set for the hearing is fixed, and not thereafter. It does lend support to the view that the petition is in the nature of a pleading, and in order to furnish the jurisdictional fact, viz., a sufficient number of qualified signers, it may be amended by supplemental petitions disclosing it.

[7] 6. Counsel on both sides correctly assume that it was the duty of the board to permit such of the petitioners as desired to do so to withdraw their names from the petition. (State ex rel. Lang v. Furnish, supra.) Counsel for the relator contend that it was also incumbent upon the board to permit those who had withdrawn to revoke their withdrawals and to be counted as petitioners. In the case last cited, after declaring the right of a signer of the petition to withdraw, this court said: “Indeed, the above rule is a necessary inference from the very nature of the right of petition, and of necessity applies, not merely to the petitions themselves, but to the withdrawals, so as to authorize the withdrawal of a withdrawal.” This remark had reference to a petition for the exclusion or withdrawal of territory from a proposed county, and was intended to apply only to a withdrawal of such a petition. As is apparent from the context, it had no reference to a revocation by petitioners of a withdrawal of their names from the petition and their reinstatement as original signers. Now, it may be conceded that the right of petition from its nature implies the right of withdrawal, because, upon further discussion and more mature reflection as to the desirability of the accomplishment of the purpose sought by the petition, the petitioner may change his conviction; yet it is not readily apparent that after he has once signified to the body to whom the petition is addressed that his name is withdrawn, he has .a clear legal right to revoke his withdrawal and be restored to his original position.

It was held by the court in Horton v. Botts, supra, that the withdrawal may be revoked at any time before it has been acted upon by the petitioned body, restoring the petitioner to his original position. It will be observed that the revocation had been permitted by the county court, and the propriety of it was afterward drawn in question in a contest of the election ordered and held upon the basis of the petition as finally considered. The court held in effect that it was within the discretion of the county court to which the petition was addressed to pursue the course it did. In a dissenting opinion, however, Mr. Justice Hannah denied the right of withdrawal in the first place, giving his reason therefor as follows: “There is nothing obscure nor complicated about a petition for a local option election. Every man who signs such a petition knows its import. Because of that knowledge, he should not be permitted to play fast and loose with the court and with the other signers. When the petition is filed, his right to withdraw therefrom should terminate. To hold otherwise is to pervert the legislative intent to add to the statute that which it does not contain, and to open the door to treachery, corruption and fraud.” We think the considerations adduced by Mr. Justice Hannah fully justify the conclusion that the right of revocation is at best not absolute, and ought not to be enforced by mandamus.

The judgment is reversed and the district court is directed to overrule the demurrer and motion.

Reversed, and remanded.

Mr. Justice Holloway concurs.