Ayres v. Moan

• Decision Date: 16 March 1892
• Parties: M. O. AYRES ET AL. v. J. M. MOAN ET AL
• Court: Nebraska Supreme Court

51 N.W. 830

34 Neb. 210

M. O. AYRES ET AL. v. J. M. MOAN ET AL

Supreme Court of Nebraska

March 16, 1892

ERROR to the district court for Dakota county. Tried below before NORRIS, J.

REVERSED AND REMANDED.

Reese & Gilkeson, Jay & Beck, J. T. Spencer, and R. E. Evans, for plaintiffs in error:

It was the duty of the board to receive the proof offered. (Clark v. Holmes, 1 Doug. [Mich.], 390; State v Nemaha Co., 10 Neb. 33; State v. Nelson, 21 Id., 578.) The filing of a petition properly signed is jurisdictional. The board is an inferior tribunal, and the facts which give it jurisdiction must appear on its record. (Smith v. Rice, 11 Mass. 513; Henry v Estes, 127 Id., 474; Hall v. Howd, 10 Conn 514; Newman v. Manning, 89 Ind. 422; State v. Berry, 12 Iowa 58; State v. Metzger, 26 Mo. 65; Chandler v. Nash, 5 Mich. 409; 1 Black, Judgments, secs. 228, 282; Jolley v. Foltz, 34 Cal. 321; Van Dusen v. Sweet, 51 N.Y. 381; Bridgeport Savings Bank v. Eldredge, 28 Conn. 556; Evansville R. Co. v. Evansville, 15 Ind. 395; Shawhan v. Loffer, 24 Iowa 217; Bonsall v. Isett, 14 Id., 309; People v. Hagar, 52 Cal. 182; S. C. & P. R. Co. v. Washington Co., 3 Neb. 41; Doody v. Vaughn, 7 Id., 28.) The findings of the board of county commissioners are not conclusive. (State v. Nemaha Co., 10 Neb. 36; Laws v. Vincent, 16 Id., 208; State v. Eggleston, 10 P. [Kan.], 8, and cases cited; Bolton v. Jacks, 6 Robt. [N. Y.], 166; Brown v. Mayor of N.Y. 3 Hun [N. Y.], 685; Stone v. Miller, 62 Barb. [N. Y.], 430; Sheldon v. Newton, 3 Ohio St. 499; Borden v. Fitch, 15 Johns. [N. Y.], 121; Harrington v. People, 6 Barb. [N. Y.], 607; People v. Cassels, 5 Hill [N. Y.], 164; Walker v. Moseley, 5 Denio [N. Y.], 102; Cooper v. Sunderland, 3 Iowa 126.) There was no error in refusing a continuance. (La Londe v. Supervisors, 49 N.W. [Wis.], 960; Hayes v. Jones, 27 Ohio St. 218; Dutten v. Hanover, 42 Ohio St. 215; State v. Nemaha Co., 10 Neb. 32.) Supplemental petition. (Loomis v. Bailey, 45 Iowa 400.)

R. B. Daley, M. B. Slocum, W. L. Joy, and S. G. Hopkins, contra, cited: State v. Nelson, 20 Neb. 572; Smiley v. Sampson, 1 Id., 70; Sheldon v. Newton, 3 Ohio St. 500; Currie v. Paulson, 45 N.W. [Minn.], 855; O'Brien v. Gaslin, 20 Neb. 350; 12 Am. & Eng. Ency. Law, 70; 7 Id., 966; State v. Nemaha Co., 10 Neb. 35; County Seat of Linn Co., 15 Kan. 500; Att'y Gen'l v. Lake Co., 33 Mich. 289; Herrick v. Carpenter, 6 N.W. [Ia.], 575; McKinney v. Com'rs, 4 S. Rep. [Fla.], 855; State v. Com'rs, 18 Neb. 283; Hickey v. Supervisors, 28 N.W. [Mich.], 771; Tobin v. Young, 24 N.E. [Ind.], 121; Hill v. Truby, 11 A. [Pa.], 89; Ford v. Ford, 10 N.E. [Ind.], 648; Plano Mfg. Co. v. Frawley, 32 N.W. [Wis.], 771; Citizens & M. Sav. Bank & T. Co. v. Gillespie, 9 A. [Pa.], 73; Bostwick v. Mahoney, 14 P. [Cal.], 832; Terre Haute v. Hudnut, 13 N.E. [Ind.], 686; State, ex rel. Newell, v. Purdy, 36 Wis. 222; Denver, etc., Co., v. Middaugh, 21 P. [Colo.], 565; Ellis v. Karl, 7 Neb. 389.

OPINION

MAXWELL, CH. J.

This is a proceeding in error to the district court of Dakota county, where the cause was heard before Judge W. F. Norris, upon a proceeding in error to the board of county commissioners of that county.

The facts disclosed by the record are that a petition was presented to the county board of Dakota county, asking said board to call an election for the purpose of voting upon the question of the relocation of the county seat of Dakota county. The application was resisted by a remonstrance of what was shown and claimed to be more than two fifths of the legal voters of Dakota county, and the remonstrants filed their answer, setting up and alleging that the petition was insufficient, and denying that the persons whose names were set out in the answer, and were attached to the petition as signers, were legal voters of the county, the number of the names alleged to be fraudulent being 201, and the names being set out in the remonstrants' answer. It was also alleged in the answer that thirty-six persons and more had signed the petition more than once; the names of the thirty-six known to have done so were set set out in schedule B, attached to the answer. The answer also contained an allegation that a large number of names signed to the petition were forgeries, the same never having been signed by the persons named, and that about 200 persons had been induced to sign by bribery and the corrupt use of money; that 269 persons who had signed the petition had subsequently signed a remonstrance against the same, and had therefore rendered void their signatures to said petition; and that they had requested the board to remove their names from said petition. Their names were set out in schedule "D" attached to the answer, the number being 269; that forty-one names signed to the petition had not shown themselves to be lawful signers, and failed to comply with section 1, article 3, chapter 17, of the Compiled Statutes in the matter of giving the place of their residence, their ages, and time of residence in the county; their names were set out in schedule "E" attached to the answer; that by the remonstrance containing 730 signatures of the legal voters of said county more than two-fifths of the legal voters of said county had remonstrated and protested against the election being called, leaving less than three-fifths to be classed as petitioners.

It appears that a supplemental petition was filed and also an answer to it was presented, containing practically the same denials and averments, setting out the names therein attacked, by proper schedules attached thereto.

The record states that thereupon the board proceeded to consider the petition and remonstrance, calling two from the petitioners and two from the remonstrators and others as needed, and then took up for consideration the supplemental petition; and now, at this time, on motion of the remonstrators that the names on the supplemental petition that appear on the remonstrance be stricken therefrom and not counted for the petitioners, upon consideration of which the same was overruled, to which ruling the remonstrators duly excepted for the reason stated by them that more than forty of the names that appear upon the remonstrance are signed upon said petition. Thereupon the board proceeded to compare the names of the petitioners and exclude duplicate signatures, whereupon remonstrators dictated entry as follows: "Now at this time, after the names upon the petition and the remonstrance had been counted by the commissioners, came Mell A. Schmied, Atlee Hart, M. O. Ayres, Fred Schriever, and about 720 other remonstrators and objectors, and ask the board herein to allow them to prove that there are 720 legal voters of Dakota county remonstrating against the calling of said special election; that there are 150 persons whose names appear upon said petition and supplemental petition and who have been counted as petitioners, who were induced to sign the same by fraud and misrepresentation; that there are 200 persons whose names appear on said petition and supplemental petition and who have been counted as petitioners for said special election who were induced to sign the same by the payment of money to them and by the promise that a court house would be built free of cost to said Dakota county and the expense of said special election would be paid by private citizens and be without cost to Dakota county; that 201 persons whose names appear on said petition and supplemental petition and who have been counted as petitioners for said special election are not legal voters of said Dakota county; that fifty persons whose names appear on said petition and supplemental petition and who have been counted as petitioners for said special election have not complied with the law relative to the signing of said petition, in that they have failed to give their correct section, township, and range on which, or town or city in which, they reside, or have failed to give their correct age and time of residence in said county, or have failed to give their correct names; that thirty persons whose names appear upon said petition and supplemental petition and who have been counted as petitioners for said special election have signed said petition more than once; that seventy-nine persons who have signed said supplemental petition have signed the same since the filing of the original petition herein and have been counted as petitioners for said special election; that thirty-five persons who have signed said petition and who have been counted as petitioners for said special election are the identical persons who have also signed a remonstrance against the calling of said special election; and that forty persons whose names appear on the supplemental petition and who have been counted as petitioners for said special election have signed a remonstrance against the calling of said special election since the time at which they signed said supplemental petition. Which request to be allowed to prove the above was denied, to which the movers above named duly excepted, and the board proceeded at once to call an election.

The board found that there were 1,028 names signed to the petition and seventy-nine names to the supplemental petition, making in all 1,127, and that 841 of these were legal voters; 286 of the 1,127 names were rejected. If the claim of the plaintiffs in error can be proved in full

there were names procured by fraud

150

There were names procured by bribery

200

There were illegal voters

201

There were those that did not comply with the law

50

There were those that signed more than once

30

There were those that signed both remonstrance and

petition

35

There were those that signed the remonstrance since

signing the supplemental petition

40

706

Sec 1,...