State ex rel. Easterday v. Howe

• Decision Date: 29 January 1890
• Parties: STATE EX REL. EASTERDAY v. HOWE.
• Court: Nebraska Supreme Court

28 Neb. 618

44 N.W. 874

STATE EX REL. EASTERDAY

v.HOWE.

Supreme Court of Nebraska.

Jan. 29, 1890.

Syllabus by the Court.

1. When statutes are so clearly inconsistent with and repugnant to each other that both cannot be executed, the last in time prevails.

2. Cities of the first class are entitled to three justices of the peace, one to be elected from each of three districts by the qualified electors of said district.

3. At an election held in the third district of the city of Lincoln for the election of a justice of the peace therein, ballots were cast designating the office, “For justice of the peace for the first district,” and others were cast therein, “For justice of the peace for the third district.” Held, that the words describing the district did not constitute a part of the legal designation of the office, and should be treated as surplusage.

4. Where the board of canvassers of an election have canvassed but a portion of the returns, and issued a certificate of election, mandamus will lie, in a proper case, to compel them to reassemble and canvass the returns correctly, and issue a certificate to the one found elected from the whole returns, notwithstanding the person to whom the certificate of election had been issued had qualified, and entered upon the discharge of the duties of the office.

N. Z. Snell, A. S. Tibbets, and W. J. Bryan, for relator.

Charles L. Hall and Adams, Lansing & Scott, for respondent.

NORVAL, J.

This is an original application for mandamus, to compel the respondent, Martin Howe, county clerk of Lancaster county, to reconvene the canvassing board, and correctly canvass the returns of the votes cast at the last general election for justice of the peace in the third district of the city of Lincoln, and to issue to relator a certificate of election to said office. The allegations of the petition are as follows:

“ First. That the city of Lincoln is a city of the first class, a municipal corporation organized and existing under the general laws of the state of Nebraska, and is divided into six wards, numbered from one to six, respectively. For the purpose of election of justice of the peace, said city is divided into three districts, numbered from one to three. That the first of said districts is composed of the First and Third wards of said city. That the second of said districts is composed of the Second and Fifth wards of said city. That the third of said districts is composed of the Fourth and Sixth wards of said city. That said Fourth ward is divided into two election districts or voting precincts, designated as ‘A’ and ‘B,’ respectively. That said Sixth ward is divided into two election districts or voting precincts, designated as ‘A’ and ‘B,’ respectively.

Second. That Martin L. Easterday, the relator herein, is a citizen of the United States, a resident of the Sixth ward of said city, and of the third district as aforesaid, and a legal voter therein, and has been for more than three years last past, and is competent to qualify for the office of justice of the peace.

Third. That at a regular annual election held in said city on the 5th day of November, 1889, the said relator was the regular nominee and candidate for justice of the peace in and for said third district in said city, upon the Democratic, Prohibition, and Union Labor tickets. That one Charles H. Foxworthy was the regular nominee and candidate upon the Republican ticket for the office of justice of the peace in and for the third district, and there were no other nominees or candidates for the said office in said district, nor were any other persons voted for for justice of the peace of the third district, nor were there any other candidates for the office of justice of the peace residing in said district.

Fourth. That by the returns of the judges of election, and the election boards of the various voting precints in said third district made to the county clerk of Lancaster county, the respondent in this case, it was shown that under the head of ‘Justice of the peace for the third district’ there were cast in A precinct of the Fourth ward, for M. L. Easterday, the relator herein, 144 votes; for C. H. Foxworthy, 200 votes. That under the head of ‘Justice of the peace’ there were cast in said district for M. L. Easterday, the relator herein, as follows:

+----------------------------------+
                ¦A precinct, Fourth ward¦17 votes. ¦
                +-----------------------+----------¦
                ¦B precinct, Fourth ward¦134 votes.¦
                +-----------------------+----------¦
                ¦A precinct, Sixth ward ¦200 votes.¦
                +-----------------------+----------¦
                ¦B precinct, Sixth ward ¦114 votes.¦
                +----------------------------------+
                

That under the head of ‘Justice of the peace’ there were cast in said district for C. H. Foxworthy as follows:

+----------------------------------+
                ¦A precinct, Fourth ward¦none.     ¦
                +-----------------------+----------¦
                ¦B precinct, Fourth ward¦200 votes.¦
                +-----------------------+----------¦
                ¦A precinct, Sixth ward ¦137 votes.¦
                +-----------------------+----------¦
                ¦B precinct, Sixth ward ¦68 votes. ¦
                +----------------------------------+
                

That under the head of ‘Justice of the peace for the first district’ there were cast in said third district, for said M. L. Easterday, three votes; for C. H. Foxworthy, none. That the votes cast for M. L. Easterday, the relator herein, and returned for him, as follows: 144 votes for ‘Justice of the peace of the third district,’ 465 votes for ‘Justice of the peace,’ and 3 votes for ‘Justice of the peace for the first district,’--total, 612,--were all cast for the said M. L. Easterday, and intended for him, and returned for him as ‘Justice of the peace for the third district,’ and should all be added together as his vote for the said office. That the 200 votes, as above set forth, returned for C. H. Foxworthy for ‘Justice of the peace for the third district,’ and the 405 votes returned for said Foxworthy for ‘Justice of the peace,’ were voted for, intended for, and returned for said Foxworthy as ‘Justice of the peace for the third district,’ and should be added together, making a total vote of 605 for him for the office of ‘Justice of the peace for the third district.’ That thereby the said M. L. Easterday received a majority of 7 votes, and was duly elected to the office of justice of the peace in and for said third district, in the city of Lincoln, for the term of two years next ensuing.

Fifth. That the respondent, Martin Howe, is county clerk for Lancaster county, state of Nebraska, and has been since the 21st day of November, 1889. That it is the duty of the respondent, as county clerk as aforesaid, to call to his aid two electors of the said county, and to correctly canvass the votes for justice of the peace for said third district, as returned by the election boards and judges of the various voting precincts of said district, to make all additions and computations necessary to determine which candidate received a majority of the votes cast for said office, to declare the candidate receiving a majorityof said votes elected to said office, and to issue to said candidate a certificate of election. The relator, on or about the 6th day of December, 1889, demanded of said respondent Martin Howe, county clerk of Lancaster county, that he reconvene the canvassing board which canvassed the votes cast in said third district, and correctly canvass the votes so cast and returned, and add together the votes cast for relator and said C. H. Foxworthy, each, under the various heads of ‘Justice of the peace for the third district,’ ‘Justice of the peace,’ and ‘Justice of the peace for the first district,’ and declare the said relator duly elected justice of the peace in and for said third district, and at said time demanded of the said respondent that he issue to him, the relator herein, a certificate of election, as required by law, each and every one of which demands the respondent, Martin Howe, refused to comply with. Relator also demanded on said day that the said respondent call to his aid two electors of said county, and canvass the votes returned for justice of the peace in said district, at the same election, and add together the votes cast for relator and said C. H. Foxworthy, each, and returned under the various heads of ‘Justice of the peace of the third district,’ ‘Justice of the peace,’ and ‘Justice of the peace for the first district,’ and declare the relator duly elected to the office of the justice of the peace for the third district, and issue to him a certificate of election according to law; each and every one of which demands the said respondent refused to comply with, and, disregarding his duties as above set forth, failed and refused, and still refuses, to call to his aid the said electors, or reconvene said board, and correctly canvass the votes returned for said office, and declare the said relator elected to said office, and issue to him a certificate of election.

Sixth. That prior to the 21st day of November, 1889, one O. C. Bell was county clerk of Lancaster county, Neb., and, contrary to his duties as county clerk as above set forth, the said O. C. Bell called to his aid two electors of said county, and made a pretended canvass of said votes, and in said pretended canvass refused to canvass, count, and add together the 144 votes, the 465 votes, and the 3 votes, returned as aforesaid, for relator, and refused to declare the said...