Peterson v. Cook
| Decision Date | 03 May 1963 |
| Docket Number | No. 35375,35375 |
| Citation | 121 N.W.2d 399,175 Neb. 296 |
| Parties | Martin PETERSON, Elmer Richardson, George Doyle and Raymond Gipson, Appellants, v. Kenneth COOK, Marvin Williams, Leonard McCormick, A. F. Rowan, Jr., First and Real Name Unknown, and Willard E. Snyder, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. If an election is held in fact, it is valid, though there may have been interference by the elements.
2. In the absence of fraud, the courts will not ordinarily consider the effect of votes not actually cast at an election or the effect of fixing of a particular time for an election which is allegedly more favorable to one side than the other.
3. It is generally held that courts will presume that all electors failing to vote at an election assent to the affirmative vote as shown by the returns.
4. The Legislature in enacting a law may properly delegate to the governmental subdivisions involved the authority and discretion necessary to effectuate its execution.
5. Section 10-703.01, R.S.Supp., 1961, is not unconstitutional because of its providing that the school board or board of education shall designate the polling places at which the elections are to be held.
6. Under a statute providing for a school district election which leaves the selection of the number and location of the polling places to the school board, its decision will be final unless it is clearly shown to be arbitrary and unreasonable.
George F. Johnson, Gregory, S. D., Robert V. Hoagland, Ainsworth, for appellants.
Edward E. Hannon, Julius D. Cronin, O'Neill, T. G. Weddel, Springview, for appellees.
Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.
This action was brought by the appellants Martin Peterson, Elmer Richardson, George Doyle, and Raymond Gipson, as residents and taxpayers of Keya Paha County, Nebraska, against the appellees Kenneth Cook, Marvin Williams, Leonard McCormick, A. F. Rowan, Jr., first and real name unknown, and Willard E. Snyder, the members of the Board of Education of Keya Paha County High School District, hereinafter referred to as the school district board, praying that an election held to issue bonds to build new school facilities be declared null and void and to enjoin the issuance of the bonds.
In the summer of 1961, certain persons connected with the State Department of Education advised that the facilities of the school districts were not adequate for an accredited school. Thereupon a countywide citizens committee was organized in Keya Paha County to analyze and investigate the school facilities and recommend what, if anything, should be done. This committee conferred with Doctor Stoneham of the University of Nebraska, and an architect. On February 5, 1962, after an investigation and analysis, the citizens committee recommended to the school district board that new facilities be constructed to cost $320,000. It further recommended that the question of issuing bonds in that amount be submitted to the voters at an election to be held on March 16, 1962, and that there be one polling place in Springview, Nebraska, the county seat.
On February 16, 1962, the school district board voted to submit to the electors a bond issue in the sum of $320,000 at one polling place in Springview on March 16, 1962. The school district boundaries are the same as those of the county.
On Sunday, March 11, 1962, the whole area was subjected to a blizzard. Winds continued until sometime in midday on March 13, 1962. The witnesses are not in complete agreement as to whether there was snowfall after March 12, 1962 but it is clear that snow continued to blow and drift until March 13, 1962, or later.
On Wednesday, March 14, 1962, the wind had gone down considerably. According to most witnesses, Thursday, March 15, 1962, was a nice day and there was general agreement that election day, March 16, 1962, was a mild, sunny day with some thawing. The state and federal highways in the county were opened by 5:30 p. m., March 15, 1962, and a considerable number of other roads were open also. Others remained snowbound.
More than 60 persons testified concerning the storm. A substantial number of electors who were wholly or partially isolated by drifts could not get out to vote. Others could have gone to the polls but they preferred to care for the livestock or perform other chores instead. In some instances certain members of the family home went when others, because of age and frailties or by reason of their desire to take care of their livestock or other duties, or merely from lack of interest, stayed at home. Some, with tractors and plows or other machinery, with difficulty, opened a way to the road and either went to the polls or, because of lateness of the hour, returned to attend to chores or other matters. In some instances electors arrived too late to vote. The testimony of the witnesses, as well as photographs in evidence, leaves no doubt as to the severity of the storm and the great depth of the drifts remaining thereafter. Most of the witnesses said it was as severe a storm as they had ever had in that vicinity. There were many drifts 10 to 15 feet high.
At the election 494 votes were cast of which 307 were in favor of the proposition and 184 were against it. The total votes at the general elections in that county in previous years were 917 in 1956; 762 in 1958; and 905 in 1960. At the primary elections there were 473 in 1954; 467 in 1956; 546 in 1958; 368 in 1960; and 498 in 1962.
The trial in the district court resulted in a judgment in favor of the defendants and appellees, holding the election was legally called and held, and denying the injunction.
The motion for new trial of plaintiffs and appellants being overruled they bring the cause to this court by appeal.
Appellants first contend the blizzard kept a sufficient number of electors from the polls to have changed the result of the election and assign error to the trial court in not nullifying the election because thereof.
Appellants cite Article I, section 22, of the Constitution of Nebraska, which states that all elections shall be free, and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise. They follow this with a citation of numerous texts and cases holding that where electors were prevented from voting by intimidation, violence, fraud, mistake, negligence, or erroneous decisions of election officers or officials, such circumstances may in certain cases where the number of electors affected is sufficient to have changed the result, nullify the election. All of these cases involve interference by human beings. That such hindrance to orderly elections might under certain conditions vitiate them is quite obvious and needs no discussion. 29 C.J.S. Elections § 220, p. 323.
Appellants argue that interference caused by an act of God should be held to nullify an election in the same manner as that caused by human beings. They contend also that with such bad weather preceding March 16, 1962, the school district board had notice that many electors would be unable to vote and that the board should have postponed the day of election. We have found only one case discussing the effect of bad weather upon elections and have been cited to none other. The case was State ex rel. School Dist. No. 56 v. Schmiesing, 243 Minn. 11, 66 N.W.2d 20. The factual situation presented there was also a severe snowstorm that had rendered travel throughout the territory difficult and in some parts, according to the testimony, impossible. As a result the polls were never opened in 3 out of 10 rural districts. A few electors went to the closed polling places but were unable to vote because there were no officials present to receive their votes. The court in the cited case held that those who presented themselves to vote and could not do so were insufficient in number to change the result. In regard to those electors, however, who were unable to get to the polls, the court in the cited case in discussing the situation, said: 'The trial court found that the school election of February 20, 1953, was not invalid because of the fact that no voters appeared at certain polling places due to a severe snowstorm and blocked roads.
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