The Nevada journal., 1856-08-22
The Comfy Seat.

At this stage in the discussion of the
matter of the county seat, it will be well
to pause awhile, and examine the laws
of the State. We take the position that
the movement of Grass Valley in pc
titioning the County Judge, the act of
the Judge if he should order an election,
and the vote of the people upon such
order, are all and equally null and void,
because in the highest degree unconsti-
tutional. The same proceedings have
been had in other counties, and were
brought to the notice of the Su-
preme Court, at the. July term, 1855,
when the decision which we give below
was rendered. We may remark in
passing that in Alameda county, man
damus was granted by Judge Hester, to
effect the same result as that aimed at
now in this county, and that in Sutter
county, which is the basis of this decis-
ion, and allproceedings were abandoned
upon the decision in the Sutter county
case:
"Dickey VS.. Hurlburt, ct al.-This
was a proceeding by mandamus in the
court below, to compel the county Off
GERS of Sutter county to open their Off
ces and transact the business of said
county at the town of Nicolaus. No
excepfiori has been takan to the form of
the remedy, and the proceeding seems
to be of an amicable character to deter
mine the legal seat of justice of Suffer
county.
The act of 1850 to provide for the
permanent location of seats of justice,
fixed the county seat of Sutter at ORC !;
the act of 1851, entitled can act to di-
vide the State into counties, &C." re-
moved the seat Of justice to Nicolaus.
The act of 1854, entitled an act amen
datory of an act to provide for the per-
manent location Of seats ofjustice of the
several counties of the State, passed
April 11th, 1850, provides that when
ever the inhabitants of any county CT
this State desire to remove the seat of
justice of the county from the place
where it is fixed by law or otherwise,
they may present petition to the County
Judge praying such removal, and an
election shall be held to determine to
what place such removal shall be made
The act containing other provisions as
to the votes necessary to determine the
election, &c. Under the provisions OF
this act an election was holden, and Yuba
City declared the seat of justice of said
county.
1t is now sought to invalidate the re-
suit of this election on the ground that
so much of the act as requires the Coun-
ty Judge to call the election is uncon-
stitutional within the decision of this
court, in the case of Bmgoyne VS.. the
Supervisors of San Francisco-the same
being a ministerial act to the exercise Of
which the Judiciary is not competent
This position we think uncontrovertible
In the case of Harris VS.. Brenham, Sd
Cal. Reports, this Court held that the
neglect or refusal of the Common Coun-
ell to call an election for Municipal off
GERS as directed by their charters, would
not vitiate an election holden on day
appointed by law that the machinery
of an election had been provided by
statute, viz: time, place and inspectors
and that the mere proclamation was no
of the essence or substance of the act t.
be done. Such would be the decision
in this case, if the Legislature hadmere
! ly imposed upon the County Judge TIL
duty of making proclamation of th'
election, for, as in the first case, the elec
ton was valid without any proclamation
so in the latter it would be legal, suel
proclamation having been made by al
officer having no authority to perform
that duty.
But time and place are of the sub
stance of every election, andthe statute
; under which the election in the presen
case was holden confers upon the County
Judge the power of designating tn,
place and manner of holding such elec
ton, so that the whole result depend
for its legality upon his acts. From it
inception to the declaration of the fna
result, the whole proceeding is conducted
, by an officer acting without legal au
thority, and is therefore void.
Judgment affirmed.
MURRAY, C.J.
| | concur in the reasoning and conclu
! sions of the Chief Justice, but am of tn
opinion that by the Constitution Of thi
State the Legislature must fix the seat
of justice or places of holding court, an
cannot delegate the power to any othe
:, body, or to decision by popular vote
ahl therefore l place my concurrenc
In he;udgment upon that ground.
HEYDENFEDT, j.
This decision settles the whole matter
No action for the removal of the county
seat, except that of the Legislature i
legal. Are we to wait a year foI
the Legislature, without any pub.
lie buildings The law empowers -fh4
SoaFd 81 SoperYisorsto PROG ged, and til.
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