Reporter and farmer. [volume] (Webster, Day County, Dakota [S.D.]) 188?-1946, 1896-11-05

Necessary to Change n County sea
Location in south Dial

While the question as 10 whether a
two-thirds vote woald be required 10
change the location OF the county seat
in Roberts county. in the present
county seal contest. was not al!owed
10 be raised in the maDdamus caSe
which was brought before the Sl-
preme court 10 compel the commit
sioners OF that county 10 call an cleo
ton for the purpose OF voting on that
question AT the coming general elec-
tion. the decision Of the court on the
case brought before them woald leave
the impression that only a majority is
required. The decision, which was
written by Judge Fuller. after reciting
the grounds set forth in the demurrer,
is as follows:
This demurrer was oyeryuled and
in the absence of a properly verified
nswer the matter vas heard and de-
termined on the papers Of the appli-
cant. who is shown 10 be q citizen of
the United States and a resident. free
holder taxpayer. and elector Of said
Roberts county. 1t further appears
that by a special act of the territorial
legislature. passed and approved the
9th day of March, 1886. said county
sea was established at Wilmot. from
which place il has never been re-
moved :that said county is organized
and the county seat thereof has never
been located by a majority vote: that
at least sixty days before the next
general election a petition signed by
more than a majority of the legal
voters of said county was presented to
the board OF county commissioners. re-
questing that the question Of the loca-
ton of the county seat be submitted
10 the voters Of said county ar the
ley general election and that not
withstanding said petition. and a SUBJ
sequent demand duly made. said board
refused and still refuses TO submit said
proposition in accordance with the
constitutional provision cited. which
is: In counties already organized.
where the county seat has not been
located by a majority vote. il shall be
the duty of the county board TO sub
NIT the location of the county seat TO
the electors Of said county at a general
election. The place receiving n major
itv Of all votes cast at said election
shall be the county seat of said
county
Under our view IF the facts sub
mitted by the demurrer and establish
ed at the hearing. no further recital
thereof is essential TO a proper consid-
eration of the questions of law 10 be
determined. As disclosed by the rec
ord this proceeding was instituted to
procure the enforcement OF a public
right.
ITO give 10 the electors Of every or
Ganized county in this state. whose
seat of government has not been es-
tablished by an expression of popular
will at the ballot box. the right TO 10
cate their county seat by q majority
vote, was the clear intention of the
trainers of the constitution. The pro-
vision quoted above is clearly and in
all respects self-executing and the pub-
lie duty imposed upon the board of
county commissioners continues in
cessantly until the question has been
submitted In conformity with the OK
press command therein contained.
The duty imposed and sought to be
enforced Is Of a public nature. resting
wholly upon the defendants. by yir-
tue OF their office and no demand Is
necessary.
The conclusion to which we have
come renders unnecessary a considera-
ton or counsel's contention CONCERNING
the sufficiency Of the petition present.
ed TO the board the pre-emptory writ
OF mandamus applied for should issue.
and II Is SO ordered"
Thls decision would lead to the he
lief that only a majority vote is re-
quired In the present contest To win
Notwithstanding that there was an
other contest In 1884, in which there
was a pitched battle to hold the rec
ords, etween Wilmot and Travare. in
which Wilmot secured the records.
d held them by force until they Sc
cured legislative action giving them
the county That very legislation
now seems to turn to their disadvant-
age.