Potter v. Furnish

128 P. 542, 46 Mont. 391, 1912 Mont. LEXIS 125

• Court: Montana Supreme Court
• Decided: November 30, 1912
• Docket: No. 3,266
• Status: Published

Opinion

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was brought by H. G. Potter, a resident, freeholder and taxpayer within the county of Custer, state of Montana, against the board of county commissioners and the county clerk and recorder of Custer county, for the purpose of enjoining the commissioners from disposing of three issues of bonds aggregating $170,000, for the purpose of securing funds for building three steel wagon bridges in that county. The bonds were authorized by a vote of the electors expressed at a special election held on the 20th day of February, 1912. The cause was submitted to the trial court upon an agreed statement of facts-, and from a judgment in favor of the defendants the plaintiff appealed.

With one exception every question presented was determined adversely to appellant by this court in Reid v. Lincoln County, 46 Mont. 31, 125 Pac. 429. We are satisfied with our conclusions in that case, and further consideration of the questions there decided need not be had.

In the brief of counsel for appellant there is urged upon us the contention that section 33 of Chapter 113, Laws of 1911, is unconstitutional. That section provides: “At any special election held for any purpose in any county, copy of the official register and check list which were printed or written before and used at the last preceding general election, must be used and no new registration need be made.” It is insisted that this section violates sections 2 and 12 of Article IX of our state Constitution, which define the qualifications of electors, and in support of this view Spier v. Baker, 120 Cal. 370, 41 L. R. A. 196, 52 Pac. 659, is cited and relied upon.

If this attack had been made prior to the election, or if it appeared that electors who were opposed to these bond issues, or any of them, in numbers sufficient to change the result, had been denied the right to vote -by reason of the operation of section 33 above, a question of importance would be-presented; but it is a rule of well-nigh uniform recognition that after an election [1] has been held, a party will not be permitted to challenge it unless he can show that a different result would have been reached but for the conditions of which he complains.

It may be that women who were taxpayers and who possessed [2] the qualifications required of men for the right of suffrage, or foreign-born citizens who were naturalized between November, 1910, and the date of. this special election, or electors who established residence in this state during that period, or others who possessed the qualifications mentioned in section 2 of Article IX of the Constitution above, were denied the right to participate in this special election; but if so, this record fails to reveal the fact, and much more, this record fails to disclose that if there were such qualified electors denied the right to vote, the number was sufficient to change the result, even assuming that all such would have voted against some or all of the propositions submitted at this election. The plaintiff does not assert that he was denied the right to vote, and under these circumstances he fails [3] to show that he has been injured, and, therefore, is not in a position to raise the question of the validity of the statute. (State ex rel. Holliday v. O’Leary, 43 Mont. 157, 115 Pac. 204; Spratt v. Helena Power Trans. Co., 37 Mont. 60, 94 Pac. 631.) It is a general rule applied by the courts that the question of [4] the constitutionality of a statute will not be determined unless it is directly raised and its determination is necessary to a disposition of the ease.

The judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Smith concur.