Peard v. State ex rel. Huering

• Citation: 51 N.W. 828,34 Neb. 372
• Parties: PEARD ET AL. v. STATE EX REL. HUERING.
• Decision Date: 03 March 1892
• Court: Supreme Court of Nebraska

34 Neb. 372

51 N.W. 828

PEARD ET AL.

v.STATE EX REL. HUERING.

Supreme Court of Nebraska.

March 3, 1892.

Syllabus by the Court.

1. It is not within the power of the board of county commissioners to disfranchise legal voters by subdividing a county for election purposes in such manner as to leave them without any opportunity to participate in the election of county officers.

2. The third commissioner district of H. county includes a part of the Third ward of the city of A. Said district was subdivided for election purposes in such manner that the voters thereof who reside within said Third ward could not vote within said district, the only voting place for said Third ward being outside thereof. At the general election of 1891 certain residents of said commissioner district, and also of the Third ward, aforesaid, and who were legal voters of said district, voted at the voting place of said ward for the respondent for commissioner of said third district. It being admitted that said votes were all cast by legal voters of the said commissioner district at the only voting place provided for them, and that said election was in all respects fairly conducted, held, that the voting by said electors outside of the commissioner district is a mere irregularity, not affecting the merits of the case, and the votes should be counted as cast.

Error to district court, Hamilton county; BATES, Judge.

Mandamus proceedings on the relation of John W. Huering against Richard H. Peard and others, as the canvassing board, to compel them to recanvass the vote of a certain election. Judgment for plaintiff. Defendants bring error. Reversed, and action dismissed.Whitmore & Carr and A. W. Agee, for plaintiffs in error.

POST, J.

This is a mandamus proceeding, begun in the district court of Hamilton county by the relator, John W. Huering, against the respondents, Richard H. Peard, county clerk of said county, L. W. Shuman, his deputy, John D. Furguson, Jr., Charles P. Whiteside, and Oscar D. Shankland. The material facts, according to the stipulation of counsel, are as follows: Hamilton county is divided into three commissioner districts, numbered the first, second, and third districts. The third district aforesaid includes within its boundaries a part of the city of Aurora, which is a city of the second class, having less than 5,000 inhabitants. Said city is divided into three wards, numbered the first, second, and third. Prior to the general election in 1891, the third commissioner district had been subdivided for election purposes in such manner as to leave a fraction thereof attached to a voting district outside of said commissioner district; that is, the commissioner district in question was so formed as to include a fraction of the Third ward of the city, but without making any provision for the electors of such portion to vote within the said commissioner district. The relator and the respondent Shankland were opposing candidates for the office of commissioner for said district at said election. There were cast for the relator, at the polling places within said commissioner district, 256 votes, and for the said respondent therein, 255 votes. There were cast for respondent, in addition thereto, five votes, by electors whose names are set out in the pleadings, who are admitted to be residents and electors of said district, and entitled to vote for said office, except for the reason that they reside in that part of said district which is attached to a voting district outside thereof for election purposes as aforesaid. The polling place at which said five votes were cast, although outside of said commissioner district, is within the Third ward of the said city,...