The Nevada Democrat., 1856-08-20
Decision of the supreme Court on Removal
Of County Seats.

OF County Seats,
A friend has handed us the following decision
of the Supreme Court, in regard to the removal
of the county scat of Sutter county. 1t will be
seen by perasal of this decision that the coun-
ty Judge has NO authority for ordering an cleo
tion even 4 one-third of the voters of the coun-
ty sign petit:on TO that effect We publish
the decision for the benefit of the legal fraterni-
tv of Grass Valley.
lfctey VS.. Harlb,nt q al-This was proceed
ing by mandamus in the court below, to compel
the county officers of Sutter county to open
their Offices and transact the business of said
comfy at the town of Nc0laus. No exception
has been taken to the form Of the remedy, and
tbe proceeding seems to be of an amicable char
acter to determine the legal seat of justice of
Sutter county.
The act of 1850 to provide for the permanent
location of seats OF justice, fixed the county seat
of Sutter at 0ro the act of 1851, entitled San
act TO divide the State into counties, &c" re-
moved the seat of justice to NicoIaus. The act
of 1854. entitled an az amendatory of an act
To provde for the permanent location of seats
of iustice of the several counties of the State,
passed April llth, 1850, provides that whenever
the inhabitants of any county of this State de-
sire TO remove the seat of justice Of the county
from the place where it is fixed by law or other
wise. 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
ether provisions as to the votes necessary to de-
tnrmine the election, &c. Under the provisions
Of this act an election was holden, and 1uba
Civ declared the seat Of justice of said county.
1t is now sought to inval,datet the result of this
election on the ground thst so much of the act
as requires the County Judge 10 call the elec--
ton is unconstitutional within the decision of,
this court, in the case of BurgOyne VS.. the Su-
pervisors of San Francisco-the same being
ministerial act to the exercise of which the Ju-
dietary is notcompetent. This position we think
uncontroyertable In the case of Harris VS..
Brenham Sd Cal. Reports, this Court held that
the neglect or refusal of the Common Council
to call an election for Municipal officers as di-
rected by their charters would not vitiate an
election holden OH day appointedibF law; that
the machinery of an election had been provided
by statute, viz: time, place anu inspectors, and
that the mere proclamation was not of the es-
sence or substance of H. act 10 be done. Such
would be the decision in ins case, if the Eegis-
lahuc had merely imposed upon the County
Judge the dnty of making proclamation of the
election for as in the first ease, the election was
valid without any pr0camation-so in the latter
it would be legal, such proclamation Having
been made by an officer having no authority to
perform that duty.
But time and place are Of the substance of
every election, and the statute under which, the
election in the present case was holden confers
upon the County Judge the power of disigna-
ting the place aEe manner of holding suck,e
ton so lilit the whole result dependsfor it's le-
gality anon his acts. From its inception to the
declaration of the final result, the whole pro-
ceeding is conducted by an officer acting with
out legal authority, and is therefore void
Judgment affirmed. MURRAY, G. J.
concur in the reasoning and conclusions of
the Chief Justice, but am of the opinion that by'
the Constitution of this State the Legislaturci
must fix the seats of justice Cr places of holding.
court and cannot legate the power to any
other body, or to decision by popular vote, and
therefore place my concurrence in the judg-
ment upon thef groand. HEYDENFELDr, ]. Y