State ex rel. Harvey v. Piper

• Decision Date: 07 July 1885
• Parties: THE STATE OF NEBRASKA, EX REL. ANDREW E. HARVEY, v. JOEL A. PIPER
• Court: Nebraska Supreme Court

24 N.W. 204

17 Neb. 614

THE STATE OF NEBRASKA, EX REL. ANDREW E. HARVEY, v. JOEL A. PIPER

Supreme Court of Nebraska

July 7, 1885

ORIGINAL application for mandamus.

Writ denied and application dismissed.

W. S Morlan, for relator.

John Dawson and Lamb, Ricketts & Wilson, for respondent.

MAXWELL J. REESE, J., concurs. COBB, CH. J., dissents.

OPINION

MAXWELL, J.

This is an application for a mandamus to compel the defendant to hold his office on the S.W. 1/4 of section 16, township 2, range 19 west, in Harlan county, which, it is claimed, is the county seat. It appears from the record that on the 3d day of June, 1871, a special act was passed by the legislature prescribing the boundaries and providing for the organization of Harlan county. Laws 1871, 192. The second section of the act is as follows: "That Thomas D. Murrin, James O Phillips, and Mark Coad are hereby appointed commissioners, who shall, within thirty days from the passage and approval of this act, call an election of the qualified voters of said county. They shall give twenty days' notice of said election by posting notices in at least five of the most public places within said county. Said voters when so assembled shall proceed to the election of one county clerk, one probate judge, one county treasurer, one sheriff, one coroner, and three county commissioners. At the same time and place said voters shall designate upon their ballots the place of their county seat, and the place receiving a majority of all the votes cast shall be the county seat of said county of Harlan. Said election shall be conducted and the votes canvassed as at general elections."

The following notice was thereupon published in said county:

"ELECTION NOTICE.

"In pursuance of an act of the legislature, passed and approved June 3d, 1871, creating and organizing the county of Harlan, an election will be held on the 3d day of July, 1871, for the purpose of electing one county clerk, one probate judge, one county treasurer, one sheriff, one coroner, and three county commissioners. At the same time and voting places, voters will designate on their ballots their choice of location for the county seat of Harlan county, Nebraska. The following places are designated as voting places: For those living on Prairie Dog creek, Ryder's house; for those living west of the east line of the county and west of Murrin's tent, at J. W. Foster's house; for those west of Murrin's to end of county, Mr. Squier's house.

"(Signed.)

T. D. MURRIN,

"J. O. PHILLIPS,

"Commissioners."

At the election held in pursuance of the notice, Alma City (Sec. 33, T. 2 N., R. 18 W.) received thirty-seven votes, and sections 23 and 26, T. 2, R. 19 W., received five votes. The returns are certified to by "Thos. D. Murrin and Mark Coad, county commissioners." The next year, acting Governor James issued a proclamation calling an election for the election of county officers and the selection of the county seat. Under this proclamation an election was held in said county in June, 1872, for the election of county officers and the location of the county seat. At this election, Alma received thirty-two votes, Republican City, fifty-seven votes, and the S.W. 1/4 of Sec. 16, T. 2, R. 19 W., thirty-six votes for county seat. Another election was called and held in August, 1872, at which, it is claimed, the S.W. 1/2 of Sec. 16, T. 2, R. 19 W. had a majority of the votes cast. The record shows that, in consequence of the various elections, there was a great deal of contention and uncertainty as to what place was the county seat of that county; that in 1876, apparently by common consent, the records of the county were removed to Alma; and the county offices have been kept at that place from that time until the present.

The first question presented is, the validity of the election of July 3d, 1871. It is claimed:

First That the act is unconstitutional, as it confers corporate powers by a special act. The practice in this state, both before and since the adoption of the constitution of 1875, has been for the legislature to create new counties by special acts; and from the nature of the case it is, to some extent at least, necessary to do so. We do not think that merely prescribing the boundaries of a county and providing the machinery by which it may be organized is within the prohibition of the constitution. Strictly speaking, it is not a conferring of corporate powers, but rather, providing the means by which they may be exercised. The corporate powers are conferred by the general law regulating counties, and not by the act prescribing their boundaries The...