(dissenting):
“An adequate remedy will always be found, either at law or in equity, for frauds perpetrated against the purity *58of elections. If a result has been secured by fraud, and the statute has provided no mode of redress, it by no means follows that no redress can be had. The right of any person claiming to exercise any public function or authority under a fraudulent election, may be tested by proceedings in quo warranto, under the principles of common law.” McCrary on Elections, § 354.
The context of the foregoing quotation concerns the removal of county seats.
‘ ‘ Where a statute requires a county office to be located at the county seat, mandamus will lie to compel the officer to open and hold his office there. And it is no answer to such a proceeding to show that there is a dispute as to which of two or more places is the county seat. The court is bound to inquire and determine where the county seat is, even if in order to do this it may be necessary to determine as to the legality or result of an election held to settle the question of the location or removal of the same.” McCrary, §366; State v. Commissioners, 35 Kan. 640 (11 Pac. 902).
The term “political question” has been made, in the opinion of the court deciding this case, to perform a very large and imposing, but, it seems to me, at the same time, misleading part. I think it is shadow without substance. Titles to office have been from the earliest times proper matters for judicial inquiry, and the writ or information of quo warranto was invented for that purpose. High, Extr. Leg. Rem., chap. 14. Erom the use of this writ the power to inquire into every step of an election has been but a necessary corollary. Statutes providing for contests, unless they are clearly made exclusive, are'only cumulative remedies. High, Extr. Leg. Rem., § 624; McCrary on Elections, §334. And the returns of canvassing officers are merely prima faeie evidence of the facts they certify. High, Extr. Leg. Rem., § 638; Reynolds v. State, 61 Ind. 392; State v. Shay, 101 Ind. 36; Kane v. People, 4 Neb. 509.
*59But I fail to comprehend wherein an election to determine the location of a county seat differs in its ‘ ‘ political ’ ’ character from that of any other election; and as the founders of the common law found a way over the technical objection that there was no jurisdiction to inquire by what right a usurper occupied an office, and extended their investigations when elections came to be the method of selecting officers, so I deem it not only the right but the duty of modern courts of general jurisdiction to further extend these well established powers to other cases where public and private rights are affected by elections.
My associates have cited the cases which oppose this doctrine, from courts which have declared themselves to be unable to find any remedy for frauds on the ballot, unless there is an office at stake or the statute makes some express provision, and these few cases are credited with overwhelming authority; but to me they are far from satisfactory. To begin with, all but two of them come from southern states, where the tendency has been to sustain election officers and returning boards at all hazards. The principal case cited from Louisiana is State v. Police Jury, 41 La. An. 846 (6 South. 777), and the language quoted is very strong; but at page 850 some light is thrown upon the matter, for it is there said:
“Courts of common law undoubtedly claim an inherent right to entertain jurisdiction over contested elections under proceedings in the nature of quo warranto; but referring to the pi'ovisions of our code of practice on that writ, it will be seen that they confine that remedy to ‘ disputes between parties in relation to offices in corporations, ’ and expressly declare that ‘with regard to offices of a public nature, that is, which are conferred in the name of the state by the governor, or by election, the usurpations of them are prevented and punished by special laws.1 This common law jurisdiction is,.therefore, expressly excluded by our statute. ’ ’
*60In fact, the cases cited from Michigan, Georgia, Texas and Tennessee are the only ones which hold squarely that there is no remedy at all. In McWhirter v. Brainard, 5 Or. 126, the point here in issue was disposed of in these words:
“There is no special statutory provision for contesting an election for location of county seat; but-we think that when the question, in such a case, is the qualification of the voter, the conduct of the judges or the legality of the canvass, the proper remedy is by mandamus, and not by injunction in equity;”
showing no disposition on the part of that court to cut off absolutely all inquiry into the merits of the election.
Mr. High yields approval to the remedy by mandamus, where the retention of offices at county seats, or the removal of them to a new location, is in issue. Extr. Leg. Hem., §79.
As opposed to the cases cited by the majority, two Illinois cases alone are referred to, and of these it is said that they neither assume nor intimate that they followed the weight of authority or any authority at all. Now, these Illinois cases occur in 1868, when there was no constitutional provision concerning the relocation of county seats anywhere but in that state; and it is worthy of remark that both of these cases antedate in time all of the cases holding that there is no remedy without a statute which are now produced in support of that rule. We have precisely the same constitutional prohibition as that construed by the supreme court of Illinois, reading:
“No county seat shall be removed unless three-fifths of the qualified electors of the county voting on the proposition at a general election shall vote in favor of such removal, and three-fifths of all votes cast on the proposition shall be required to relocate a county seat.” Art. 11, §2.
The supreme court of Idaho recently sustained an in*61junction against the removal of a county seat as the result of an illegal election. Doan v. Commissioners, 2 Idaho, 781 (26 Pac. 167).
In Sweatt v. Faville, 23 Iowa, 321, an injunction case, it was said:
“Our law does not provide any method for contest in these cases. . . . That the legislature should make some provision on this subject, and give a speedy, plain and summary method for settling these most warmly contested and, to the public, important controversies, each day renders more and more manifest. Our courts should not be required to pass upon them in the first instance, but a tribunal should be provided where the whole matter could be speedily tried and determined. In the absence of such legislation, can equity grant the relief asked? The case of Rice v. Smith, 9 Iowa, 570, is an authority for the exercise of the power, as prayed for in this petition, and we are content to there leave it. In view' of all the decisions, and especially the limited duties and powers of the board of canvassers under the writ of mandamus, we know of no other adequate remedy in these cases. ’ ’
This decision was rendered in 1867, and the remarks there made concerning the limited powers of the board of canvassers are extremely pertinent here, since under our statutes no grade of election officers has the power to investigate or pass upon anything but the returns which are made by the precinct officers.
In Kansas, in 1870, in the case of State v. Marston, 6 Kan. 524, the supreme court held that mandamus would lie to investigate frauds in a county seat election, notwithstanding the statute which allowed twenty days after the date of the election to contest the result; and the opinion, which is a strong one, especially upholds the right of any person who is beneficially interested in a particular place for the county seat, to maintain the suit. The same doctrine was upheld in State v. Stevens, 23 Kan. 456; State v. Commissioners, 35 Kan. 640 (11 Pac. 902).
*62In Calaveras County v. Brockway, 30 Cal. 326, .decided in 1866, although the boards of supervisors in California constituted the canvassing boards of the counties, it was held that the determination of the board of supervisors that a certain town had received a majority of all the votes cast in favor of its location as the county seat, was prima facie evidence only of the fact so determined; and that if the fact were otherwise than as determined by the board it would be an unjust denial of the right of the electors of the county to shut the door against all remedy for the redress of the wrong. Mandamus was awarded to contest the result.
In 6 Am. & Eng. Ency. of Law, p. 392, is this statement:
11 While the court will not enjoin the holding of an election, or the canvass of the vote, yet when the election is held to determine questions such as the removal of the county seats, or subscribing to capital stock of corporations, and there is no provision for contesting the election, it has been held that an injunction may be granted to prevent the officer from doing the act authorized by the election, where it is alleged that the majority was caused by fraudulent or illegal voting.”
And it is evident that, although the cases contra are cited in the notes, the text, in the judgment of the compiler, states the correct law of the case.
Michigan has been mentioned as one of the states which upheld the doctrine of non-intervention by the courts in the matter of the removal of county seats, on the ground that such removals were purely political questions over which the courts had no jurisdiction. Yet that court has recently gone so far as to interfere by injunction with the secretary of state in the matter of calling an election for state senators and representatives, one of the grounds for its action being that the act of the legislature making the apportionment violated the portion of the constitution which required each *63senatorial and representative district to contain as nearly as might be the same number of inhabitants as the others.
Now the constitution of that state provided for a census, and it might be supposed that the legislature would have equal means with the supreme court for ascertaining the population of the state and its location in the various counties and cities; and the apportionment of senators and representatives is certainly the very highest exercise of political power of which a legislature is capable; yet in this case the court went behind the face of the law which contained the finding of the legislature as to what the census showed to be the population and where it was located, and inquired into the facts, and finding that gross errors had been committed in the matter of putting an immense population in one district and a meagre, population in another, held the law, by reason of the facts, to be unconstitutional, and compelled the secretary not only to refrain from issuing his notice of election under the unconstitutional lawr but also directed him to issue the call under a previous statute which had been expressly repealed; and this was done in one case, at least, at the instance of a private citizen who merely alleged that he was an elector of the seventh district. The court said, in Giddings v. Blacker, 93 Mich. 1 (52 N. W. 944):
“The basis upon which relief is sought is that the power delegated by the above provisions of the constitution to rearrange the senatorial districts is limited; that this limitation was wholly disregarded by the act in question, and the act is therefore unconstitutional and void. It appears conceded by the learned attorney general that the legislature is not in the exercise of a political and discretionary power when acting under these constitutional provisions, for which it is only amenable to the people, and that this court has jurisdiction, in a case properly before it, to determine the constitutionality of the act in question.”
See also Board of Supervisors v. Blacker, 92 Mich. 638 (52 N. W. 951).
*64Now, if the legislature, in the matter of an apportionment, was not acting under political and discretionary power by reason of the constitutional mandate, so in the matter of re-location of county seats, where the prohibition is, as in this state, absolute and unqualified, the power must be also taken to be limited; and the conclusion would be forced upon us by this argument that if it be a fact that the legislature has passed an act for the re-location of a county seat which provides for no means by which frauds can be detected and the actual validity of the election determined, then the law must be an unconstitutional law in itself. The proposition is reduced to this, under the decision of the court, that the bare dictum of the county commissioners asserting that a vote upon the removal of a county seat has resulted in a certain way is incontestable by any power on earth. This court says that the courts cannot look into it, and the constitution prohibits the legislature from doing so because it can pass no special act on the subject, and no re-submission of the question can be made at an earlier period than four years. Such a delegation of power to a purely ministerial body is otherwise unheard of under the system of state governments prevailing in this country, and the plain spirit of the constitution is clearly against it.
The case of State v. Jones, 6 Wash. 452 (34 Pac. 201), has no bearing upon or relation to this subject. The legislature is a coordinate, independent, legislative branch of the state government, set up by the constitution for the purpose of passing laws. Certain restrictions are by the constitution laid upon it as to the method in which it shall operate, and the case above cited merely holds that when it has, by its constituted officers, certified that it has passed a certain law, the courts, recognizing its equal supremacy with themselves in its own department, will not go back of the certificate and enter upon a practically impossible in*65quiry as to whether or not the forms prescribed by the constitution were followed in procuring the enactment.
But the board of county commissioners is nothing but the ministerial hand of the legislature, provided for the convenient execution of the law which has been passed. It has no sanctity attached to its action, and its proceedings have no more finality than those of any other municipal or executive officer upon whom the duty is cast of executing the laws of the state.
In my judgment, the only question which a court, with the allegations of this complaint before it, should consider, is, what is the proper remedy? To refuse any relief because the legislature has failed to make a complete election law, is to nullify the constitutional right of each elector to vote and have his ballot counted; for it is error to declare, as does the decision, that the right of the plaintiff to vote upon this proposition depended to any extent upon the act of the legislature. Const., art. 6, § 1; art. 11, § 2.
At the time this action was brought the county seat had not been removed from Oysterville, but the removal was imminently threatened. Mandamus, under the highest authority, would have lain to compel the retention of the offices at that place, and the alleged frauds could have been inquired into in that proceeding. Why not by injunction, as well? The sole difference between the pleadings under the two remedies would have been the prayer of the complaint. As filed, the prayer is that the defendants be restrained from moving their offices from Oysterville; in mandamus it would have been that they keep them at Oysterville. The difference between the remedy by mandamus and the remedy by injunction would be so infinitesimal in such a case as this, that I hold that all regard for the old formal technicalities should have been brushed aside, and the relief demanded by the facts alleged promptly applied.
The briefs of counsel state that the motion to dismiss *66was granted by the court below, upon the ground that the plaintiff had ■ a complete remedy by a direct appeal from the order declaring the county seat removed; wherefore the action would not lie. In treating of that disposition of the case it would be necessary to consider the law under which the order removing the county seat is made.
By the general law governing elections in this state (Gen. Stat., title 8, Of Elections), boards of county commissioners have nothing to do with general elections except that they appoint the local election officers. Elections are called by the auditor, and the returns are made to him. The canvass is made by the auditor, the judge of probate of the county and one other county officer who is summoned to that duty by the auditor; and when the canvass has been made and the canvassing officers have certified the result, it is- the duty of the auditor to issue certificates of election to the candidates having the highest number of votes. The election returns remain in the custody of the auditor and at no time reach that of the commissioners.
The statute governing the removal of county seats (Gen. Stat., title 38, ch. 3), provides that the board of county commissioners, upon the receipt of the proper petition, must, at the next general election of county officers, submit the question of removal to the electors of the county. Sec. 2459. Eo method is provided by the statute by which the order of the board submitting the question of removal is to be officially transmitted to the auditor who calls the election. But supposing that hiatus to be bridged over and the election to be called, §2462 reads as follows:
“When the returns have been z*eceived and compared, and the results ascertained hy the hoard, if thz’ee-fifths of the legal votes cast by those voting on the proposition are in favor of any pai’ticular place, the board must give notice of the result by posting notices thez’eof in all the election precincts in the county.”
*67Now the language quoted above implies as plainly as language can that the board itself shall in some way pass upon the sufficiency of the vote, and here occurs the most serious difficulty in the matter; for we have seen that the election returns, including the poll books and the ballots, all rest finally with the county auditor, and no means is furnished by which the commissioners can acquire legal or official possession of them for any purpose. Therefore, it is impossible to see how the board can, as required, either receive or compare the returns or ascertain the result.
This matter seems to have been entirely overlooked by the legislature in passing the act in question, and the law is therefore radically deficient. The act of February 2, 1888, providing for the permanent location of county seats in new counties, avoided this difficulty by providing that the vote cast at the election for the location of the county seat should be “canvassed, certified and returned in the same manner as at general elections: Provided, That the county auditor shall return the result of such election to the county commissioners, who shall meet and declare and enter the result upon their records.’’ Gen. Stat., §2454. This law furnishes the commissioners with an official basis for their proceeding, viz., the return of the result made by the auditor; but the statute relating to the re-location of county seats furnishes no such means of ascertaining the result.
In the case at bar it appears from the statements in the pleadings that the county commissioners, by some means or other, obtained possession of the poll books and pretended to make a canvass themselves, a thing which the law of elections in no way authorizes or countenances. Probably this course was taken because the officers found nothing in the law directing them how to proceed, and considered the method under which they did proceed as a reasonable method. But the laws governing elections do *68not depend upon reasonable methods, but upon express statutory direction. That the method chosen by this particular board is not necessarily the only method, is shown by the fact that in another case now pending before this court, another board pursued the method of calling upon the county auditor to certify to it the return made on the question of re-locating the county seat, by the official canvassers, as though the vote had been taken under the act of 1888. It is needless to say that one or the other of these methods was wrong.
Thus much has been said with a view of showing that while an appeal from the order of the board might bring before the court the sufficiency of the proceedings taken by the board, it would not by any means serve the purpose sought to be arrived at in this case; for the board is not authorized by the statute to enter into any election contest, nor has it any authority whatever to examine ballots or poll books or certified returns.
For these reasons the appeal would have been an entirely inadequate and useless remedy. Possibly the court, upon such an appeal, might have come to the conclusion that, for the reason that the board of commissioners is charged with the duty of canvassing election returns, and at the same time is furnished no means whatever by which it can-acquire the possession or right to investigate or consider the returns, the' whole statute is rendered nugatory and all proceedings under it void. In that case the remedy by appeal would have been sufficient, since the injunction would have properly followed such a finding; but the point does not seem to have been raised or suggested.
There only remains to consider the question whether a private citizen can interfere. The court says that he cannot because he shows no interest in the subject matter. Every case that I have cited holds to the contrary, and the reason of the thing is to the contrary. In this case it is *69shown by the complaint that the plaintiff has a large property interest in the former county seat. Moreover, the county is there possessed of property in the shape of county buildings which are practically useless for any other purpose and will have to be abandoned by the county. At the new county seat new buildings must be provided. All this must be at public expense, and plaintiff, as one of the tax payers of the county, must help to pay the cost. Moreover, every citizen of a county has a personal interest in the location and place of business for the county officials with whom he has to deal. The courts do not hesitate when a board of county commissioners, under the law, authorize the issuance of bonds whether for the incurring of new indebtedness or for the funding of old, to inquire, at the petition of any citizen, into the legality of the election held for the authorization of bonds. This court has passed upon many such cases, and not a term passes that one or more of them is not before us covering either county or municipal bonds. The logic of this decision would be to deny the jurisdiction of this court in all such cases and leave it wholly to the unbridled determination of purely ministerial officials to determine whether or not the law has been complied with. I cannot subscribe to any such doctrine, and believe that the adoption of it would be wholly mischievous and confusing.
In Todd v. Rustad, 43 Minn. 500 (46 N. W. 73), the court said:
“An action for a permanent injunction restraining the removal of a county seat, or the expenditure of public funds, or the creation, unlawfully, of public indebtedness for the erection of county buildings, may, however, be maintained on the ground of an entire absence of legal authority to do the acts complained of, as where the proceedings threatened are under a statute which is unconstitutional, and are wholly unauthorized and void. We see no reason why a citizen and taxpayer should not in such case have the same right to his remedy by injunction, *70in a proper case, to restrain the unlawful removal of the county offices as to his remedy by mandamus to compel their restoration to the county seat. ’ ’
The injunction was refused in that case only because the statute had provided a summary, adequate mode of procedure for contesting the regularity and validity of the election. To the same effect was State v. Weld, 39 Minn. 426 (40 N. W. 561).
In the celebrated Wisconsin apportionment case, State v. Cunningham, 81 Wis. 440, 506 (51 N. W. 724), cited and relied upon in the Michigan cases, Penney, J., after arguing that the apportionment by the legislature, under the direction of the constitution, was the exercise of legislative rather than political power, closed the question of the court’s power to interfere in this language:
“But if it is not strictly a legislative power, if, as counsel contends, it is a mere act of political power, upon what possible ground can it be maintained, in the face of the plain provisions of the constitution by which it is limited and restrained, that the delegate in the performance of his trust becomes superior to his creator and may transcend the terms of his commission, and disregard its conditions and limitations, and still his act be deemed valid and conclusive % To so hold would be to declare that the conditions and restraints placed by the constitution upon the exercise of its power, vital to the maintenance and preservation of a popular representative form of government, are only of optional obligation, and that the very guaranties of its perpetuity may be so wrested from their purpose and perverted as to become the speedy and certain instruments to subvert and destroy it. It is clear to my mind that the restraints and conditioDS annexed to the power abide with it, and when disregarded it is the right and duty of the court to declare the act void. ’ ’
Applying this principle to the case before us, I must dissent from the conclusion that the courts can apply no. remedy to this confessed wrong.
Hoyt, J., concurs.