[1] With this last contention, we are unable to agree. The law is well settled in this state that, under our statutes, prohibition will lie, in a proper case, to restrain the action of an administrative board. State v. Harris, 22 S. D., 111, 115 N. W. 533; State v. Barber, 19 S. D. 1, 101 N. W. 1078.

[2, 3] Appellants further contend that a writ of prohibition should not issue to prevent the holding of an election, for the reason that there are other plain, speedy, and adequate remedies, and they cite the case of State v. Ramsey, 27 S. D., 302, 130 N. W. 768. Without determining whether, under some facts and circumstances, a court would be justified in prohibiting the holding of an election, we have no hesitancy in stating that it could only be where the correctness of the relator's position was free from doubt, or where no adequate remedy would remain after election held. If, instead of waiting until the calling the 1911 election, respondent had, prior to the election when the question of establishing the municipal court was submitted, sought a writ of prohibition to prevent the holding of such special election, and had then urged that no proper petition had been presented to the city council, an entirely different situation would have faced the trial court, especially if such court believed, as is held in some jurisdictions, that a failure to question the sufficiency of a petition before election waives the right to question it after election. But the contention of relator in this case the correctness of which is absolutely essential to support the trial court's judgment-is that the failure to file petition and the failure to call and record the yea and nay vote were jurisdictional and rendered the special election absolutely void. That being true, no rights of appellant could have been prejudiced by refusing the writ asked for. After the election of April, 1911, he had adequate remedies by an action in the nature of quo warranto (State v. Tillma, 32 Neb. 789, 49 N. W. 806; People v. Riordan, 73 Mich. 508; 41 N. W. 482), if not by an election contest under article 13 of chapter 19, pol. code, or by a writ of prohibition. In fact, the learned trial court virtually recognized its error in granting the alternative writ when it modified it so as to allow the election to be held. One can readily see what great and irreparable injury might result from a wrongful issuance of an alternative writ, preventing the holding of an election.

[4] The trial court should have dismissed this special pro

ceeding at the time it granted the modification of the alternative writ; but, instead of so doing, it waited until after election and then tried out the issues of law and fact, upon which rest the validity and result of the special election. Though, for the reasons hereinbefore stated, the judgment of the trial court must be reversed, and such court ordered to dismiss the special proceeding brought, yet, as such a dismissal would leave undetermined the question of whether the city of Sisseton has a municipal court, we deem it our duty, to determine this question, which is of so much public moment to the people of such city.

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*

Sections 3 and 4 of chapter 191, laws of 1907, being the law authorizing the establishment of municipal court, read as follows: "Sec. 3. Question submitted. Whenever of the legal voters of any city a number equal to ten per centum of the number of votes cast for mayor at the last previous municipal election at which a mayor was elected in such city shall petition the mayor and council thereof to submit the question whether such court shall be established to a vote of the electors of such city, it shall be the duty of such mayor and council or other governing body to submit such question accordingly to an election held within twenty days from the date of the filing of such petition with the auditor of such city, and to appoint a time and place at which such vote may be taken, and to designate the persons who shall act as judges at such election, but such question shall not be submitted oftener than once in any calendar year.

"Sec. 4. Elections-How Held. Excepting as herein provided such election shall be held in the manner provided by law for holding municipal elections in cities of the class to which such city may belong. The mayor of such city shall give at least ten days' notice of such election, by publishing a notice thereof in the official newspaper of such city. The ballots to be used at such election shall be in the following form: 'For establishment of a municipal court,' or 'Against establishment of a municipal court.' The judges of such election shall make returns thereof to the city council or other governing body, whose duty it shall be to canvass such returns and cause the result of such canvass to be entered upon the records of such city. If a majority of the votes cast at such election shall be for the establishment of such court, such court shall thenceforth be

deemed to be established under this act as soon as a judge thereof shall have been elected and shall have qualified."

The statute contemplates that there shall be a written petition presented and filed; but it is the presenting of the petition for filing and consideration, and not the actual filing, that gives to the council the authority to call an election. Moreover, the petition must be considered as filed when it was presented to such council for its action thereon.

[5] When it appears from the undisputed facts that an administrative board has acquired jurisdiction to do an act, the courts should liberally construe the acts of such board in carrying out such authority.

[6, 7] It will be seen that the above sections do not require the calling of an aye and nay vote upon the resolution submitting the question; in fact, under section 3, upon the presentation of such petition, it became the absolute duty of the council-enforceable by mandamus, if necessary-to submit the question to the vote of the electors. Certainly, where a board could be compelled to do a thing even if it had recorded a unanimous vote against the doing thereof, it does not require that the ayes and nays be recorded in order to make their vote in favor thereof legal. It is not such matters that are contemplated by section 1209 of the Political Code of this state which requires the yea and nay vote to be recorded upon any and all propositions to create any liability against the city, or for the expenditure or appropriation of its money." This statute pertains to those matters only wherein the council may have a discretinary power, not to matters which are not only initiated by the electors themselves, but finally determined by such electors, and over which the council, as such, has no discretionary power whatsoever. Where the danger, against which a law is designed, does not and cannot exist, the law can have no application.

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[8] Was "a majority of the votes cast at such election * * *for the establishment of such court"? The total number of voters voting at the general municipal election was 339; but the total number of votes cast upon the question of establishing a municipal court was but 310, of which 168 were in favor thereof. It will be noted that the statute does not require that this special election be held at the time and place of any general election, as is required in the case of the submission of certain other questions.

There is some reason for holding that, when a statute requires a question to be submitted at a general election held for the election of public officers, it so provides in order that it may be submitted under circumstances calling out a full vote, and thus indicates an intention that the total number voting on any and all matters shall be the basis taken in determining whether a question has received, in favor thereof, a majority "of all votes cast at such election." This forms the basis for the rule supported by some authorities that: "When a question is referred to a vote of the people, to be decided by a majority of the legal voters at a general election, the requirement calls for the requisite majority of those who vote on any ticket, nomination, or question at that election, and not merely a majority of those who vote on the particular question presented." 15 Cyc. 390. But, even under such statutes, there are numerous authorities holding that the total vote cast upon the particular question controls. Armour Bros., etc., v. Finney County Com'rs (C. C.) 41 Fed. 322; Board, etc., v. Winkley, 29 Kan. 36; Gillespie v. Palmer, 20 Wis. 544; Sanford v. Prentice, et al., 28 Wis. 358. But the rule stated in Cyc. cannot possibly obtain where the statute, as in this case, does not direct the special election to be held at the same time and place as a general election. In enacting such a statute, it is clear that it was the intent of the lawmakers that only those voting upon the question submitted should be considered in determining whether a majority of the votes cast at the election was in favor of such question; and no different result can be brought about by either the innocent or willful calling of the special election to be held at the same time and place as the general election.

A city council might be opposed to a question which they were compelled by law to submit to a vote of the electors. It might be a question that would not arouse much public interest, but which the council believed would receive a majority of those who would come out to an election called solely upon such question. Shall it lie in the power of such council, where the statute does not require this election to be held at the same time and place of, and as a part of, the general election, to make it a part thereof, and, by so doing, perhaps defeat the question by recording against it those who refrain from voting thereon? The Constitution of the state of Kentucky provides that no county could become indebted in excess

of a certain amount in any one year, "without the assent of twothirds of the voters thereof, voting at an election to be held for that purpose." The Constitution makes no reference to a "general election." A question of incurring indebtedness was submitted at a general election and received a two-thirds vote of those electors who voted on such question, but not a two-thirds vote of those voting for candidates at the general election.

In passing upon this situation, the Supreme Court of that state, in Montgomery County, etc., v. Trimble, 104 Ky. 629, 47 S. W. 773, 42 L. R. A., 739, held that, even, "if it (the Constitution) had said, 'Without the assent of two-thirds of the voters thereof' voting at an election, we would be of the opinion that, when the word 'election' was used, it referred to the proposition upon which the vote was to be taken." This court also said in the same case: "The consensus of judicial opinion is that, when an election is held at which a subject matter is to be determined by a majority of the voters entitled to cast ballots thereat, those absenting themselves, and those who, being present, abstain from voting, are considered as acquiescing in the result declared by a majority (here twothirds) of those actually voting, even though, in point of fact, but a minority of those entitled to vote really do vote. The fact that the election was held for the purpose of obtaining the necessary assent of two-thirds of the voters to the proposition, on the day of the general election, to fill offices does not change the rule of interpretation, nor, if so required to be held does it show a purpose to require the assent of twothirds of those who vote for officers and on other questions at the election. To so interpret the language used is to disregard its plain import and the current of judicial decisions in this country." See, also, State v. Barnes, 3 N. D. 319, 55 N. W. 883; Holcomb v. Davis, 56 Ill. 414; State v. Echols, et al., 41 Kan. 1, 20 Pac. 523.

The judgment of the trial court is reversed, and it is directed. to dismiss the peremptory writ and the proceeding in which it was issued.

CROCKER, Appellant, v. CUMBERLAND MINING & MILLING COMPANY, Respondent.

(139 N. W. 783.)

1. Exceptions-Findings of Fact-Entering

Findings Without

Notice.