State ex rel. Eble v. Leavitt

• Decision Date: 23 October 1891
• Parties: STATE EX REL. EBLE v. LEAVITT ET AL.
• Court: Nebraska Supreme Court

33 Neb. 285

49 N.W. 1097

STATE EX REL. EBLE

v.LEAVITT ET AL.

Supreme Court of Nebraska.

Oct. 23, 1891.

Syllabus by the Court.

1. The city of N. is a city of the second class, having more than 2,500 inhabitants, and is divided into four wards. The city is within N. precinct, which is six miles square, and contains outside of the city about 300 voters. The county board has organized the territory above described into a voting precinct, the votes to be cast in the city of N. Held, that the powers of a board of registration of the city of N. did not authorize such board to register any voter outside of the city limits.

2. That every legal voter of the precinct is entitled to vote at the place provided for that purpose by the county board, although such place may be within the limits of a city of the second class; and, where there is more than one voting place in such city, he may vote at any one of them.

3. It is the duty of the county board to provide a suitable number of polling places to accommodate the voters of the county, and no doubt the board may be compelled, in a proper proceeding, to provide proper facilities.

Mandamus.

Application of Charles Eble for a peremptory writ of mandamus to William Leavitt and others, as a board of registration, to compel them to register the relator as a legal voter of the city of Norfolk. Writ denied.George H. Hastings, Atty. Gen., for the State.

Barnes & Tyler, for respondents.

MAXWELL, J.

The relator alleges in his petition that “he is a bona fide resident of the state of Nebraska, and has been for more than twenty years last past; that he is a citizen of the United States, and a duly and legally qualified elector of the state of Nebraska; that he has resided in the county of Madison, and that portion of said county known and called ‘Norfolk Precinct;’ that he has so resided therein for more than ten years last past, and is entitled to the privilege of casting his vote at the coming general election to be held in this state on the 3d day of November, A. D. 1891. (2) That the city of Norfolk, which is situated within the boundaries of said Norfolk precinct, as aforesaid, is a city of the second class, having more than 2,500 inhabitants; that it is duly organized as such, and is exercising all the rights, duties, privileges, and franchises of such city; that the said city is situated within the boundaries of Norfolk precinct, which said precinct comprises a large amount of territory lying outside of the city limits of said city, and which said territory has residing therein, and in the said precinct, a large number of legal voters and electors, to-wit, more than 300 in number, who reside outside of the city limits of the said city; that said Norfolk precinct is one of the voting precincts of said county of Madison, duly established by the board of county commissioners thereof; that it comprises a portion of said county 6 miles square, and that the said city of Norfolk, above mentioned, is situated within the said territory, and comprises only a small portion thereof, and but a small portion of the said territory lies within the incorporate limits of the said city. (3) That the said city of Norfolk is divided into wards, voting precincts, as provided by law, to-wit, the 1st, 2d, 3d, and 4th wards; and that the defendants William Leavitt, H. W. Winter, and A. H. Keisan are the duly appointed, qualified, and acting board of registration for the First ward of said city of Norfolk; that E. G. Hielman, L. M. Gaylord, and W. F. Ahlman are the duly appointed, qualified, and acting board of registration in and for the Second ward in the said city; that August Sattler, George Correvon, and C. G. Miller are the duly appointed, qualified, and acting board of registration in and for the Third ward in said city; that E. G. Hyde, G. W. Beymer, and P. H. Nelson are the duly appointed, qualified, and acting board of registration in and for the Fourth ward in said city of Norfolk, aforesaid. (4) That on Wednesday the 14th day of September, 1891, your relator, who resides outside of the incorporate limits of the said city of Norfolk, duly presented himself to each of the several boards of registration above named, and asked and demanded of the said boards, and each of them, that he be registered as a legal voter, to the end that he might be entitled to cast his vote at the coming general election, above mentioned; that each of the said several boards of registration, and all of them, refused to register your relator as a legal voter in said city of Norfolk, and still refuses so to do; that the reason assigned for such refusal by each of the several boards of registration is that your relator is not a resident of the city of Norfolk, and has not resided within any of the said wards, or within the incorporate limits of the said city, and is therefore not entitled to register or cast his vote in the said city at the said election; that it is claimed on the part of the said boards, and each of them, that the persons residing outside of the incorporate limits of the city of Norfolk, and within the precinct, as above stated, of which your relator is one, are not entitled to vote within the said city, or in any of the wards thereof, but that a separate polling place should be established outside of the corporate limits of the said city, where your relator and all other legal electors of the said Norfolk precinct so residing outside of the said city limits should cast their votes; and that said persons, including your relator, are not required to register before voting, and are not entitled to be registered for that purpose. (5) That the common council of the said city of Norfolk has never, in any manner, divided the territory lying outside of...