Bradburn v. Wasco County

106 P. 1018, 55 Or. 539, 1910 Ore. LEXIS 120

• Court: Oregon Supreme Court
• Decided: February 15, 1910
• Status: Published

Opinion

Mr. Justice Slater

delivered the opinion of the court.

The local option law of this State (Laws 1905, p. 41, c. 2) contains no specific provision for the contest of the result'of a vote taken upon the proposition therein authorized to be submitted to the voters. It contains a general provision, however, that in all elections thereunder in all matters and proceedings not therein specified the provision of the general election laws of the State shall apply, so far as the same are applicable. . Laws 1905, p. 47, c. 2, § 9. It is contended by contestants that the provisions of Section 2839, B. & C. Comp., are applicable to the facts of this case, and sufficient to support the jurisdiction of the court. It provides that “any person wishing to contest the election of any person to any county, district, township, or precinct office, may give notice in writing to the person whose election he intends to contest that his election will be contested, stating the cause of such contest briefly, within thirty days from the time said person shall claim to have been elected.” The notice here provided for is to be served as a summons, and filed with the county clerk, who is required to enter the same as an appeal case upon the docket of the circuit court, which thereafter has jurisdiction to try the same.

1. The determination of election contests is a judicial function only, so far as authorized by statute. 17 Cyc. 394; Taxpayers v. O’Kelly, 49 La. Ann. 1039 (22 South. 311) ; State v. Judge, 13 La. Ann. 89.

2. A statutory mode of contesting elections is in every sense a special proceeding and subject to the well-settled rule that the tribunal exercising jurisdiction does not proceed according to the course of the common law, but must resort to the statute alone to ascertain its powers and mode of procedure. Dorsey v. Barry, 24 Cal. 449; Linegar v. Rittenhouse, 94 Ill. 208; Dickey v. Reed, 78 Ill. 261; Batman v. Begowan, 1 Metc. (Ky.) 533; Garrard v. Gallagher, 11 Nev. 382.

3. The power of the court to entertain and determine election contests under the section of the general election law here relied upon (Section 2839, B. & C. Comp.), is confined by the terms thereof to cases where the contest involves the title or right to an office, which, by the very nature thereof, concerns particular persons. It does not confer júdicial power to inquire into the validity of an election, in the manner there stated, where a proposition of any sort is submitted to a vote of the people under a statute, which makes no provision for the contest of the election. Savage v. Wolfe, 69 Ala. 569; Calaveras Co. v. Brockway, 30 Cal. 325; People v. County Commissioners, 6 Colo. 202. The court, therefore, was without jurisdiction to hear and determine the matter involved in the notice, and there was no error in dismissing the proceeding.

The judgment is affirmed. Affirmed.