The Court Could Make Commissioners Act—But Not Tell Them How

Judge Lichtenberg, of the superior court, last night refused to grant a writ of mandamus to compel the board of county commissioners to establish a new voting precinct at Stevens City. The proceeding was brought from a Democratic source in the name of Harding, a resident of the territory which it was proposed to include in the new precinct. The petition for the writ was met by the commissioners with a return and answer, which was considered for the purposes of the case as a motion to quash the writ.

The argument of the case was set for a night term of court. Richard Wilson appeared for the petitioner, and Prosecuting Attorney Miller and E. C. Hughes for the commissioners.

Mr. Hughes, who opened the argument, maintained that the board had already acted according to law. It was sought to compel them to make a separate precinct of the east half of range 19 and the west half of range 11, all of which territory had already been placed within the Martin's Creek precinct, and the court had no authority to compel them to make another precinct. It could compel the commissioners to act if they should fail altogether to do so, but it could not compel them to create a precinct of any certain territory. It could compel them to act, but could not decree how they should act.

Furthermore, it did not appear from the petition that there were in the territory sought to be organized into a new precinct the requisite number of voters for such action.

Mr. Wilson said he would admit that the court could not compel the board to create a precinct within any certain bounds, but it could compel it to carry out the judgment already exercised by it. He devoted most of his time to the argument that inasmuch as a member of the board had promised some of the petitioners for a precinct at Stevens City that it should be established, this was a judicial action of the board, and the court could compel a completion of it.

In closing the argument Prosecuting Attorney Miller said that the petitions of the people for new precincts had no legal existence whatever. The commissioners were not bound to act upon them and took cognizance of them only by courtesy. Again, the law provides that changes in the territory of voting precincts shall be made by the board on or before September 1. It is mandatory only before that date and the court cannot compel them after that date to do an act not specially enjoined by law. As to any promises made to the people, if there had been any actual promises they were not the official action of the board. This had not been done while the board was in session and there was no record of it.

In giving his decision Judge Lichtenberg said that three questions had arisen in the case. The first was that no demand had been made on the commissioners, the second that the commissioners had no power under the law to act after September 1, and the third that the board had already acted by the creation of a district. Under his view of the case he considered it unnecessary to pass on the first and second points. Under the third question the pivotal point was as to what effect should be given to the announcement of the commissioners to the people petitioning that the precinct should be established separate from Martin's Creek precinct. There could be no doubt that this was not the official action of the board. The body was not in session and this announcement was not recorded. Afterward the board created a single precinct, included the territory for which the people asked two precincts, and a return was made of this action. They acted as required by law, but whether correctly or not it was not the power of the court to determine. The motion to quash the writ was therefore granted, the petition dismissed and the peremptory writ denied.