State ex rel. v. Fields , 53 Or. 453 ( 1909 )

Mr. Justice Slater

delivered the opinion of the court.

The motion is resisted by counsel who have appeared for the defendant, on the ground that the acts done by him in obedience to the writ were done after the appeal was perfected and while the cause was pending in this court, and also because the things required to be done, and which were done, did not relate to, or affect, the substance of the suit, which, it is claimed, is the construction of a statute of this State as to whether a presidential election is a general election, as contemplated by our Code and Constitution, and whether the term “general election,” used in article 4, §§ 15, 16, of the city charter of Portland, Oregon, includes the election held November 3, 1908, at which presidential electors were chosen.

There is no merit in either of these contentions. The' object of the suit was to require of defendant the performance of certain acts alleged to be imposed upon him by law. Although at first he refused to act, yet pending the appeal he has done all that was required of him, and it cannot affect him one way or the other whether he was justified in refusing to act or not. The mooted question whether the election is legal affects a large number of persons not parties to the record, and, however judgment might be given, it would bind no one. The question is fully settled by the decisions of this court summarized in State ex rel. v. Grand Jury, 37 Or. 542 (62 Pac. 208).

The appeal will therefore be dismissed.

Dismissed.