
    STATE ex rel. JARVIS et al., Plaintiffs, v. BROWN, et al., Defendants.
    (145 N. W. 444.)
    1. Counties — County Seat — Selection—General Election — Candidacies —Constitution, and Statute — Construction.
    Under Const., Art. 9, Sec. 2, providing that, in counties already organized, where the county seat has not been located by majority vote, the county board shall submit the location of county seat to the electors at a general election, and the place receiving a majority of all votes cast at such election shall be such county seat, held, that, the location of a county seat, under said section, can only be had at a general election, and every place in the county has a constitutional right to have its candidacy submitted at such election, and every elector has a constitutional right to cast a vote at a general election, for any town or place seeking to be such candidate; and hence no statute purporting to provide a method for submission of question of what towns may be (candidates for county seat of such county, at a primary election, is effective to eliminate any town from consideration of the electorate at the time fixed by the constitution for expression of the elector’s' choice.
    3. County Seat — Selection—Constitutional Provision, Construction, of — “Counties Already Organized” — Statute Inapplicable.
    Under Const., Art. 9, Sec. 1, providing that the Legislature shall provide by general law for organizing new counties, locating county seats, and that all changes in county boundaries, in counties already organized, before taking effect, snail (be submitted to the electors of the county or counties to -be affected at the next general election thereafter; and Sec. 2, declaring that “in counties already organized,” where county seat has not been located by majority vote, the county board shall submit the location of county seat at a general election, held, that the words “in counties already organized,” in Sec. 2, had reference-, not to date of adoption of the constitution, but to time when application of the -provision is sought to be made; and hence, where no permanent -county seat of the county had ever been selected, an application for such selection must be made under Sec. 2, at a general election, and that Laws 1911, Ch. 112, providing for elimination of candidates for county seats at a primary election, is not applicable.
    (Opinion filed February 18, 1914.)
    Original application for writ of .mandamus by the State, on relation of IT. S. Jarvis and another, agains-t H. W. Brown, and others-, constituting the County Commissioners of Gregory -Coun-ty, and P. T. Amibroz, as County auditor of such .county. Writ denied.
    
      J. F. Frame, and W. J. Hooper, for Relators.
    The only .provision in the Constitution which has. .any bearing on the question at issue is Section i. This count in the case of' State Ex- Rel Casper v. Pouter et al., 13 S. D. 126, has express- . ly held that the .provision of Section 2 o,f Article 9 applies simply to counties organized at the time of the adoption of the Constitution, and where, the counity seats had not been located by majority vote at that time. This is clearly correct, as any other construction would render the word's “already organized” superfluous and with no meaning whatever. There never was by statute a limitation on the right to vote for the location of county seats in counties organized since the adoption of the Constitution, excepting that the vote must be at a general election.
    At the first session of the legislature of this state,, Chapter 64 of the Laws of 1890 was passed. This contains three sections.
    This law wias enacted solely under the provisions of Sec. 2, Art. 9, of the constitution., and it had no application to counties which were to be organized after -the .adoption of the constitution. In Sec. 1, it expressly refers to Section 2, of Article 9, and says that the election shall be had as provided in section 2 of article 9, of the Constitution. And in section 2, 'which limits the right to vote oftener than four years, if provides that when no. city or town shall have received the vote required by the constitution, the question shall not be submitted again for four years. This clearly applies to the counties referred to in section 2, because there is no provision whatever in the 'Constitution' for locating county seats in counties organized subsequent to the adoption of the Constitution. ,
    That Chapter 64, Laws of 1890, applied only to counties organized at the time of the adoption of the Constitution, is apparent by the revision of 1903. Secs. 791, 792, 793, Pol. Code.
    Chapter 112 of the Laws of 1911 is the first law since statehood which has been passed under the provisions of section 1, article 9, Constitution. lit c’ann'ot apply to counties organized prior to the adoption of the Constitution, for the reason that the location of the county seats in those counties is controlled absolutely :by section 2 of 'article 9, and the machinery to carry it into effect was provided for in chapiter 34 of the laws of 1890, and again ;by section 791 and ■ 792 of the Revised Political Oode of 1903. This chapter under consideration, therefore -applies solely to counties organized since the adoption of the Constitution.
    There is no limitation in this law as it stands, on the right to vote at every election. The only limitation- is that the question can be submitted -only a-s between candidates who- have filed a petition with the county commissioners and then at the general election between the two- places receiving the highest number of votes at the primaries.
    Section 791, Pol. Code, -as amended by Laws 1911, ch. 112, provides for one election for county -seat' to be held at the time of the primaries. Section 2, Oh. 1x2, Laws 1911, provides for a second election to be held at the time of the general election, but limits the names going on the ballot to- the two- places receiving the highest number of votes at -the first election.
    The Constitution, by section 1, article 9, expressly gives the right to the legislature to pass this law of 1911. At the time of the enactment of that law there was no general law in this state applicable to the location of county seats in counties organized subsequent to the adoption of the Constitution.
    
      Chas. A. Davis, and French & Orvis, for Respondents.
    Chapter 112, Laws of 1911, under which this proceeding was instituted, is in conflict with Section 2, Article IX., of the Constitution, and is therefore void.
    Assume for th§ purpose of argument that the county seat of Gregory County has not been located by a majority vote within- the meaning of Section 3, of Article- IX., of the State Constitution.
    .Under that section no election- i-s- referred to- except the general election, which is- hel-d in November of each of the even numbered years, -and under this -section -any town, city or -place in the county may be a candidate for t-he -county -seat, and may have a place on- th-e ticket at the general election, -and be voted for for county seat, and if any such town, -city or place receives a majority o-f all the votes cast at .the election such to-wm, city or place shall be. the county seat of the county.
    
      It is not within the power of the -legislature to enact any statute in any way conflicting with this provision of the state 'Constitution. State ex rel. Adkins v. Lien, 9 S. D. 297.
    Chapter 112, Laws 1911, is not only in conflict with the Constitution, but if we are wrong in this contention, then under Section 794 of the Revised Political -Code, the question of locating the county seat of Gregory County cannot he submitted to- the electors of that county until -the general election in 1916.
   WHITIN'G, J.

Sections 1 and 2 of article 9 of the Constitution read as follows, the underscoring being ours:

“Section 1. The Legislature shall provide ¡by general law for organizing new counties, locating the county seats thereof and changing county lines. * * * All changes in county 'boundaries in counties already organized, before taking effect shall be submitted to the electors of the county or counties' to be effected thereby, at the next general election- thereafter and be -adopted by a majority of the votes cast in each county a-t such election. Counties now organized shall remain as they are unless changed according to 'the above provisions.
“Sec. 2. In counties already organised where the county seat has not been located by a-majority vote, it shall be the duty of the county board to -submit the location of the county seat .to the -electors of said county at -a general election. The place receiving a majority of all votes cast at said election shall be the .county seat of said county.”.

Chapter 112, Laws 1911, -purports to provide a method where-, by, through petition filed with the county auditor of an organized county, any town or place desiring to be a candidate for county scat may require the county commissioners to submit to- the qualified electors of such county at the approaching primary election, the question of what towns may -be candidates for -county seat of such county; under such law, any town in behalf of which a -petition has been filed may have its name placed upon a special ballot to 'be cast at such primary election, and the two- places receiving -the highest -number of votes cast at such primary shall be the candidates for the permanent county seat, and -shall be voted on as such at the general election following said primary. A primary election is to be held in this state on March 24, 1914, and, within the time prescribed, petitions, conc-ededly sufficient under such law, were filed with the county auditor of Gregory County — 'one requesting that the name of the town- of Burke be placed, as a candidate for county seat, on a ballot to- be.used' at such primary election'; the other requesting that the name of the town of Herrick be so- placed on such ballot. The board of .county commissioners of s'aid -county refused to submit the question, basing its action solely upon the -ground that, “under the law, -the question- of -the location of the county sea-t -ca-nnot be submitted until 1916;” -and such board rejected -both of the petitions. The bounty auditor, in conformity with the -action of the board of -commissioners, refused to give notice of submission -o-f the question, of what towns -should be candidates for county seat, and refused -to prepare the neces-sary ballots for the submission o-f such question. Relators, electors, and taxpayers -of said Gregory county brought this- original proceeding and are seeking a writ requiring -the respondents, a-s such, board of county commissioners- and -county auditor, to comply with said petition — to submit the question o-f candidates for -permanent county seat to the electors o-f said- county at said primary election-, to give notice of such submission and to .prepare -and furnish the necessary ballots to be -used upon the submission- of s-uch question.

The following are undisputed facts herein: The Constitution of this státe was adopted in t-h-e year 1889; Gregory county was organized -at an election held in the year 1898; at such election the town of Fairfax was chosen as the county -seat of said county, and has so remained to this date. Relators contend-, and for -the purposes -of this- proceeding it will -be taken- a-s established, that Fair-fax was cho-sen as merely a temporary county seat, and- still remains such, and -that -therefore the election sought toi.be held would not be one to change the location of a county seat that had’-once been located by a majority zwte, and thus be controlled by section 3, Art. 9. of -the Constitution.

Relators- bas'e their rights upon -the claim t'ha-t section 2 of said article has -no- application whatsoever to -the selection o-f a permanent county se)at for Gregory county; it being their -contention that section- 2 applies only to counties (that were organized prior to the adoption of 'the Constitution, and- that the selection of a permanent county seat for Gregory county is controlled entirely by section 1 and laws enacted thereunder.

The ultimate end sought by relators is that there be a permanent county seat chosen for Gregory county at the general election next November. Would the selection of a county seat for Gregory county, at such general election, be a selection under section 2? It is too clear to- -need argument or citation of authority-in support thereof that, when a county seat is to 'be located under said section 2, it can only he at a general election; and it follows that if the selection of a permanent county seat for Gregory county is a selection under such section, every -place has a constitutional right to- have its candidacy submitted -at a general election, and every elector of said county has the constitutional right to cast his vote at a general election for any town or place seeking to' be such candidate — no statute can, through -any primary election, eliminate any town from the consideration of the electorate at the time fixed by the Constitution for the expression of the electors’ choice.

But relators contend that the Legislature has full power to provide the time or times and the method for (the selection of a permanent county seat for all counties which have 'been organized since the adoption of the Constitution, arid they base their contention upon the words, “In counties already organised,” found at the beginning of section 2, contending that those- words limit the application -of the provisions of such section to- counties organized after the adoption of such section. They contend (that this court so held in -the case of State ex rel. Cosper v. Porter et al., 13 S. D. 126, 82 N. W. 415. It is true that, ira describing the class o-f counties to which Roberts county 'belongs, and in holding that such class Game under the provisions of said section 2, the court noted that such county was organized prior to> the adoption of the Constitution. The question whether it would have taken it out from the provision's of such section, if it had not been- -organized until after such Constitution was -adopted, was not before (the -court at that ■time, and no views were advanced thereon.

It would- be exceedingly strange if the framers of our constitution and the electors who adopted the same intended to keep all counties that should -be organized after tile adoption of such Constitution — even after they had been organized — in a class separate and distinct from, and with their residents subject to rights and powers different from, those counties which chanced to have been organized prior, to. the adoption of such Constitution. A more unwise act could hardly he imagained, and we certainly should hesitate long before holding that they ¡did such an unreasonable and, indefensible thing. How much more consonant with reason it is to say that they intended the -provision's of the fundamental law of this state to be continuing in their effect — that it is the status at the time the application of the provisions of he Constitution is sought to be made, rather than the status at the time of the 'adoption of the Constitution, that determines the application of its provisions! If is certainly in accordance with reason to say that the provisions of such 'section apply to any organized county, regardless of the time of its organization, -provided it had never located its county seat by a majority vote.

We find this same phrase, “in counties already organized,” in section i, in connection with changes of county boundaries', and we certainly should presume that it was intended that this .phrase should have the same meaning in both sections. In that section it is clear that the words “already organized” refer to' and relate to the time when the change is sought to' be made -because of the word “thereafter” in said sentence. If those words “already organized'” related' to the time of the adoption of the 'Constitution, then in- lieu of the wbrd “thereafter” the Constitution' would have used the words “'after ithe adoption of the Constitution." Our present interpretation is further .corroborated by the last sentence of said section i, which provides that, “counties now organized shall remain as they are unless changed according to the above provisions,” thus- making a definite provision for then existing counties. If the words “already organized” related1 to the time of the adoption of the Constitution,, that sentence wá-s superfluous. Chapter 64, Laws- 1890, was enacted during the first session of the Legislature held' during statehood, and. immediately after the adoption of our Constitution. When we compare the provisions of said chapter 64 with those provisions of our Constitution, relating to location and change of county seats, it will be found that, in. the light of the construction, which we -have .placed upon such sections, said chapter 64 was a complete, clear, and unambiguous, law for locating and1 changing county seats, and -this whether the county seat to be located or changed be one for a county organized prior, to or subsequent to the adoption of the Constitution. The membership of suc'h Legislature was composed largely of men who had been members of the convention which framed our Constitution. If relators are right in the construction that should' be given the words “in counties already organized,” the Legislature remains unrestricted in its power to change the boundaries of any and every county that Las been organized since statehood — no proposed change need be submitted to .the voters of such county for their ratification — while the ¡boundaries of all the older counties cannot be changed unless the act of the Legislature changing same is ratified according to the provisions of section i. That our legislators have placed no such unreasonable construction upon such phrase is evidenced by the fact that, when it has -sought to change the boundaries of a county organized since the adoption of section i, it has been -careful to submit it-he question of such change to- a vote -of tire electors- of such county. See chapter 45, Laws 1897.

The writ -sought for is denied.  