The Idaho Republican. [volume] (Blackfoot, Idaho) 1904-1932, 1909-12-10
COMMISSIONERS ACTED LEGALLY
Supreme Court Sustains Judge Bulge
In Necisi0R ON Local OPP
ti0n Law ~

supreme Court SustainS Judge BudQ
In DecisioR ON Local OPP
tiOn Law r.
i The decision of Judge Alfre
Bulge In sustaining the order of tn
board of commissioners OF Bear LAX
county for an election under the pro
visions OF the local option law as pc
ltitioned for, Is afiirmed by unanimou
action Of the supreme court In al
opinion handed down last evening
the court holding that the filing o
the petition with the proper person
and failure to mark thereon the wore
filed or to write thereon the proper
Official designation OF the officer doe,
not prove that such paper was moi
filed.
The question raised Is similar te
one of those raised In the Ada county
and Canyon county cases. the order
for the election In both counties being
afiirmed by the district court and
appeal taken from the decision OF the
Canyon county court. The opinion
in the Bear Lake county case. entitled
John f. O'Connor VS.. Board OF County
Commissioners of Bear Lake county,
Is written by Justice Stewart and Is
concurred In by Chief Justice Sulli-
van and Justice Ailishie. With re-
spect to the contentious OF counsel
and the ruling OF the court, the opin-
ion says.
Contention Of Counsel
In this court appellant relies upon
two contentious: First. that the pc
tition was not legally filed: hence. the
board OF commissioners had no au-
thority or jurisdiction to make the
order calling an election. Second, the
court erred In permitting the witness
Holmes to correct his fling on the
petition by striking out the word
clerk and inserting in lieu thereof
the word auditor Section | OF the
act Of February 20, 1909, supra, re-
Quires that the petition shall be filed
with the county auditor.
1T Is the contention of appellant
that although the Offices OF clerk of
the district court and ex-officio audi
tor and clerk Of the board of county
commissioner are all filed BY the
same person, that the presentation OF
the politician to such person and by
him filed is not a filing with the aud
itor, as provided in-the statutes, un-
less such person writes after his name
the word auditor 1t was not the
duty Of the petitioners when the petit
ton was presented to stand by and
see that the official performed the
duty required of him by law. The law
made 1t is his duty, upon the presen-
tation of such petition and the tender
Of the legal fee If demanded, to file
the same as auditor; and the fact
that he endorsed such petition as filed
and wrote after his name the word
clerk instead of auditor would not
deprive the petitioners of their rights
under the law. When the petition
was presented to the proper official,
with a request that such petition be
filed, the petition in contemplation Of
law was filed. To file paper is to de-
post 1t with the proper custodian for
filing, record or custody as provided
by law. The failure to mark thereon
the word filed or to write thereon
the proper official designation Of the
officer does not destroy the filing or
prove that such paper was not filed.
Principle Involved
This question was considered by
this court In the case of 0. s. l.. r.. r.
Co. VS.. Stalker, IA Ida. 371-40', in
which this court held:
1.-THE great weight of authority
seems to be that when A grantee has
duly deposited for record a valid in
strument at the proper time. at the
proper Office and with the proper Of
icer, he has performed his whole
iuty, and subsequent purchasers will
De charged with constructive notice.
the officer does not
spread the instrument on the records
,r fails to record 1t at all.
Applying this principle to the case
lnder consideration, when proper
petition was presented at proper
ime, to the officer named In the law
owit. the auditor. and left with him
or filing. 1t was filed. The petitioners
lad done all that the law required
Il them. and their rights could not
'e jeopardized by any failure OF the
'fficer to make the proper indorse-
nents upon such petition. Under the
tipulated facts, the petition praying
hat an election be called was flled 4
nth the proper officer and In accord 4
nee with law, Notwithstanding the I
act that such officer wrote after his
anne the word clerk This no doubt |
'as a mere clerical error and should (
OF, and could not, In any way pre- I
ndice the rights OF the petitioners
Evidence OF Filing
1T is next contended that the trial a
ourt erred In permitting the auditor ,
, amend the Endorsement made upon
UGH petition by striking out the word (
Jerk and writing the word auditor. (
he Endorsement made upon the petit
on by the auditor was merely the {
whence of the filing and did not I
onstitute part of the fling, and the {
aper having been properly fiied, II /
as not error in the trial court to per- {
lit the Endorsement to be, corrected /
! accordance with the fact Stark 4
Gather VS.. Bell, so N. w. 1873. The
ldgment OF the district Is affirmed.
osts awarded to respondent
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