The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1900-03-25
COURT FACES ABOUT
On the Question of County
Seat Removal.
DECISION BY JUDGE IRWIN
Chief Justice Burford and
Judge Hainer Dissent

Guthrie, O. T., March 2-The supreme
court Of the territory at its present ad-
Journed session has taken another fall
cut Of the mooted question as to whether
or not congress intended that county
seats located in Cherokee Outlet counties
are to be regarded as permanently 10
Gated, or whether they come within the
provisions Of the legislative enactment
authorizing. the removal of county seats
at special elections after certain con-
ditions had been complied with. The
question arose originally from the county
seat fight in Grant county, where an
election was called by the county com
missioners for the purpose of relocating
the county seat. Judge McAtee refused
10 grant a temporary injunction against
holding the election and an appeal was
taken to the supreme court, In the
meantime the opponents to the election
made another move by applying to
Chief Justice BUrford in chambers for a
writ Of manCamus ordering the board of
election commissioners to place the name
Of "CenteTville." an imaginary town. on
thu election ballot which applica ton was
subsequently, denied by the chief justice
on the ground that the law Of congress
contemplated the permanent location of
the county seats in the Cherokee Outlet.
The case was then taken from Judge
Burford in chambers TO the full bench,
which sustained the chief justice JUS
aTr
handed down by Justice irwin ast night.
however, in the Injunction suit originally
brought before Judge AcAtee. he SUI
preme court reverses itself on the main
issues involved. Chief Justice Burford
and Justice Hainer dissenting.
After holding that the action Of the
board of county commissioners in order
ing an election to determine the location
of a county seat is ministerial act and
not judicial decision from which an ap-
peal lies to the district court, Justice
Irwin in his opinion proceeds to discuss
whether or not the county seats Of
Cherokee Outlet counties are subject 10
the legislative enactment providing fer
changing the county seats. as follows:
But the objection presented in the
second assignment of error. IS in our
judgment one of more grave and serious
consequences and one not entirely free
from doubt. 1t is there contended that
the provisions of the law authorizing the
opening of the lands embodied in the
Cherokee Outlet. Of which Grant county
IS a part for settlement is in conflict
with chapter % Of the statutes Of Okla
homa for 1893. relating 10 changing coun-
y seats. which is authorized by the
organic act. which reads as follows:
That the legislative power Of a territory
shall extend to all rightful subjects of
legislation not inconsistent with the con-
stltuuon and laws of the United States.
1t is contended that as the act of
March 3, 1893, providing for the opening
Of this county to settlement made pro-
vision whereby certain lands should be
set apart and designated by the score
tary Of the interior for county seat pur-
poses was such an exercise of authority
over the subject matter as deprived the
territorial legislature of the right of leg
islatng upon this question, and that any
attempted legislation upon the part Of
said legislature was void as being in
conflict with this act The writer OF
biito 'A'li4Atli II Tree 10 confess tlat his
first impression N regard to this case
upon this point were strongly in favor of
the doctrine laid down and ennunciated
by the chief justice of this court in the |
case Of George W. Allen ct al VS.. the /
beard of commissioners: but more mature |
reelection and a more careful examina- |
ton of the case. and more compile |
and thorough examination of the author !
tiles has convinced him that his former !
views. as well as the views Of the chief
justice on this subject. are not the cor |
rect ones and are not sustained by the |
better reasoning and the greater weight |
of authority"
Arguing upon the point that the en- |
actment of laws authorizing the chang /
ing of county seats is a rightful subject
uf legislation, the opinion proceeds: AS |
above stated. plaintiffs claim that the /
fact that by the act Of congress and the (
presidents proclamation hereunder the |