Linch v. State

• Decision Date: 18 November 1890
• Citation: 30 Neb. 740,47 N.W. 88
• Parties: LINCH ET AL. v. STATE.
• Court: Nebraska Supreme Court

30 Neb. 740

47 N.W. 88

LINCH ET AL.

v.STATE.

Supreme Court of Nebraska.

Nov. 18, 1890.

Syllabus by the Court.

1. Under the provisions of the statute, (section 57, c. 19, Comp. St.,) a judge of the district court sitting at chambers, at any time and place within his judicial district, has the power and jurisdiction to hear and determine an application for a writ of mandamus, and such power and jurisdiction include the allowances of a peremptory writ of mandamus.

2. All material allegations well pleaded in a petition, and not denied or answered unto in the answer, will be deemed and taken as true.

Error to district court, Grant county; HARRISON, Judge.O. A. Abbott, for plaintiffs in error.

Kirkpatrick & Holcomb, for the State.

COBB, J.

This action was mandamus, brought in the district court of Grant county, and tried before the honorable T. O. C. HARRISON, judge of the ninth judicial district, at his chambers, in the city of Grand Island, in Hall county. The petition contains the following allegations of fact: (1) That the relator is a duly-qualified elector, citizen, and tax-payer of the county of Grant, and state of Nebraska. (2) That on or about the 15th day of April, 1888, the governor of the state, upon the petition of citizens of Grant county, appointed Thomas B. Linch, James Forbes, and Romane Westover special commissioners, and John S. Dellinger special county clerk of said county; that each of said officers took the oath prescribed by law, and entered upon the discharge of their duties as said officers according to law; and that, on the 28th day of May, 1888, said special county commissioners and county clerk called a special election to elect county officers for said county, and to vote upon a site for permanent county-seat for said county of Grant. (3) That said special commissioners and clerk divided said county of Grant into four voting precincts, as follows, to-wit, Whitman, Hyannis, Ashby, and Collins, and that, at the special election held in said county, on the 31st day of July, 1888, pursuant to the call of said special commissioners, the following legal votes were cast in the several precincts, to-wit: (4) That there were cast in the precinct of Whitman 30 legal votes for the town of Whitman for permanent county-seat, and 28 legal votes for Milton Dodds for county treasurer of said county, and 2 votes for James Forbes for county treasurer, “as returned by the board of canvassers of said precinct.” (5) That at said special election there were cast in the precinct of Ashby 9 legal votes for the town of Whitman for permanent county-seat, and 6 votes for the town of Hyannis for permanent county-seat of said county, and 15 legal votes for Milton Dodds for county treasurer of said county, “as returned by the board of can vassers of said precinct.” (6) That at said special election there were cast in the precinct of Collins 21 legal votes for the town of Whitman for permanent county-seat, and 28 votes for the town of Hyannis for permanent county-seat, and 21 legal votes for Milton Dodds for county treasurer, and 28 votes for James Forbes for county treasurer, “as returned by the board of canvassers of said precinct.” (7) That at said special election there were cast in the precinct of Hyannis 24 votes for Hyannis for the permanent county-seat of said county, and 24 votes for James Forbes for county treasurer of said county, as returned by the board of canvassers of said precinct of Hyannis; “a copy of said canvass is hereto attached marked ‘Exhibit A,’ and made a part hereof.” (8) That there were cast in said county, at said special election, in the several precincts, 60 legal votes for the town of Whitman for permanent county-seat, and 58 votes for the town of Hyannis for permanent county-seat, and no more, and 64 votes for Milton Dodds for county treasurer, “as returned by the precinct canvassing boards.” (9) That there were cast at said special election, in the precinct of Collins, for the town of Hyannis for county-seat, two illegal and unlawful votes that were duly canvassed and counted for the town of Hyannis for county-seat, in this: that they were cast by one Walter Broking and one William H. Rothwell, who had not resided in the state of Nebraska but five months. (10) That there were cast at said election, in the precinct of Ashby, for the town of Hyannis for county-seat, 6 illegal votes that were cast by persons that did not reside in Grant county, and had only been in said county 21 days, “and their names are unknown to this affiant,” and that said votes were duly counted for the town of Hyannis by the precinct canvassing board. (11) That there were cast at said election, in the precinct of Hyannis, for the county-seat at the town of Hyannis, four illegal votes duly counted and canvassed by the board for the town of Hyannis,--to-wit, G. C. Rickering, H. R. Dellinger, and Michael Yokum, who were not citizens and residents of Grant county,--and one vote cast by ______, who was not a citizen of the United States, and had never declared his intention to become one; and said illegal votes were all counted for the town of Hyannis and given in the number of votes given above, except those cast in the precinct of Ashby. (12) That on the 7th day of August, 1888, said special county commissioners and county clerk met at the town of Hyannis, temporary county-seat, to canvass the votes cast at said special election, and then and there duly canvassed and declared the returns of the votes cast at said election in the precincts of Whitman, Collins, and Hyannis, in said county, and unlawfully, wrongfully, and fraudulently threw out, disregarded, and refused to canvass the votes cast in the precinct of Ashby, in said county, as returned by the precinct canvassing board, though often requested so to do, and still neglect and refuse to canvass said vote, and to declare the result, and this without any color of right or authority of law so to do, and fraudulently and unlawfully declared the town of Hyannis the permanent county-seat, and the said James Forbes to be the duly-elected county treasurer of said county. “A copy of the record of said commissioners is hereto attached,” etc. (13) That the town of Whitman received a majority of all the votes cast at said election for permanent county-seat, and Milton Dodds received a majority of all the votes cast at said election for county treasurer, and that the town of Whitman should be declared the permanent county-seat, and that Milton Dodds should be declared the duly-elected county treasurer of said county. With prayer that the said board of county commissioners and county clerk be compelled to reassemble and canvass the votes cast in the county at said election, and especially the votes cast in Ashby precinct, as they are by law required, and that they may be required to declare the town of Whitman the permanent county-seat, and to declare Milton Dodds the duly-elected county treasurer of said county of Grant, and for costs.

The defendant John S. Dellinger, answering for himself as well as for his co-defendants, “admits that there was a special election, at the time mentioned, in Grant county,” and denies each and every the several matters and things alleged in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, and 11 of the petition. Answering paragraph, or cause of action, No. 12, the defendant denies that any legal election, or any election, was held in Ashby precinct at said special election. But alleges that the said special commissioners, in specifying the place of voting in said Ashby precinct, selected the house of H. J. Kinley, 2 1/2 miles west of Ashby station. That notices were posted of such fact, and one of said notices was posted on said Kinley house. That no election was held at said house, nor was there any pretense of holding an election there, nor in or about it, or at any place on the farm or land of said Kinley; nor did any judge or clerk of election act or receive any votes or ballots at the place so designated, nor were any polls opened at said place on the said 31st day of July, 1888; but that several evil-minded and wrongly-disposed persons, and illegal voters, in order to disturb the law-abiding citizens of said county, congregated together at a place some two and a half miles distant, east of the said Kinley house, a place that had not been designated as the place of election, and, wholly unknown to the legal voters of said Ashby precinct, fraudulently and unlawfully pretended to receive votes and ballots for several officers to be voted for, and for the places designated for the county-seat of Grant county, and received, or pretended to receive, some 15 votes without any kind of ballot-box other than a cigar-box, which said box was unlocked, and without any means of fastening, and was not fastened at any time, but was opened and shut at pleasure during the day, and votes taken therefrom and changed at the will of the pretended board. That at the said pretended election in said precinct, there was but one book for the names of the voters, and the said book, when returned to the county clerk to be opened by the board of canvassers, was found to be in such an irregular, changed, and scratched condition as to be unintelligible. That the persons shown to have acted as judges and clerks were not sworn before any justice of the peace, or any officer known to the law, and the papers returned were not and could not be recognized as the returns of an election held at the place designated to hold said election, in Ashby precinct, in said county; this return being the one complained of by the plaintiff. That out of the 15 votes alleged to have been cast in said Ashby precinct, 10 of them were illegal for the reason that said votes were cast by persons who were not residents of Grant county. That, in the event that said board of canvassers were recalled together, as prayed for, the result of the said election would not be changed, for the...