State ex rel. Christy v. Stein
| Decision Date | 20 December 1892 |
| Citation | 35 Neb. 848,53 N.W. 999 |
| Parties | STATE EX REL. CHRISTY v. STEIN, COUNTY CLERK, JOHNSON, INTERVENER. |
| Court | Nebraska Supreme Court |
1. Under the provisions of section 20, c. 26, Comp. St., it is the duty of judges and clerks of election to return a true list of the persons voting at that election, and certify the same. It is also the duty of the judges and clerks to certify the aggregate number of votes cast for each person voted for, but it is no part of their duty to certify that certain persons received a specified number of votes as a Democrat, and a certain number as People's Independent, or otherwise, and such certification has no force or effect.
2. By section 46 of the above chapter it is made the duty of a county clerk, upon the reception of the returns from each election precinct, ward, etc., and within six days after the closing of the polls, together with two disinterested electors chosen by himself, to open the poll books and make abstracts of the votes cast for members of the legislature from the county alone on one sheet, and “of votes for members of the legislature by districts comprising more than one county on another sheet;” and by section 48 the clerk is required to make out a certificate of election to the person having the highest number of votes. Held, that it was the duty of the clerk to issue a certificate to the person having the highest number of votes, and that he had no authority to classify the votes cast for a candidate as People's Independent, Democratic, or otherwise.
Original application in the name of the state on relation of S. W. Christy for mandamus to Herman E. Stein, county clerk of Clay county, commanding respondent to issue to relator a certificate of election to the office of state senator for the twenty-fifth senatorial district. L. L. Johnson intervened. Denied.L. G. Hurd, G. M. Lambertson, and A. W. Agee, for relator.
Thomas H. Matters and John M. Ragan, for respondents.
This is an application for a mandamus to compel the defendant, Stein, to issue a certificate of election to the relator. The cause of action, as set forth in the amended affidavit, is as follows:
“S. W. Christy, the relator, being first duly sworn, says and represents to the court that he is a citizen of the United States and of the state of Nebraska, and has been for more than two years last past, and continuously to the present time, a resident elector of the county of Clay, in said state, and is eligible to the office of state senator for the 25th senatorial district in the state of Nebraska, which said senatorial district is composed of the counties of Clay and Hamilton, and no others. That the respondent, Herman E. Stein, is, and has been for more than two years last past, the duly elected, qualified, and acting county clerk of the said county of Clay, which is the first county named in the law designating the said senatorial district. That at the general election in said senatorial district held on the 8th day of November, 1892, the relator was a candidate for the office of state senator from said senatorial district, and that the several election boards in the several precincts in the county of Clay duly made returns to the respondent, as county clerk of Clay county, Nebraska, of all the votes cast in the several voting precincts, respectively, in said county, including those cast for state senator for said 25th senatorial district, and that within six days after the 8th day of November, 1892, the said county clerk, together with two disinterested electors and residents in said county who were selected by him for that purpose, canvassed the votes of the several precincts in said county, which had been duly returned to him as such county clerk by the several election boards in said county, including the votes cast for state senator in said district, and made an abstract thereof as provided by law, and found that there had been cast in the several voting precincts in said county for state senator as follows:
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