State ex rel. Hymer v. Nelson

• Decision Date: 06 April 1887
• Citation: 32 N.W. 589,21 Neb. 572
• Parties: STATE EX REL. HYMER v. NELSON.
• Court: Nebraska Supreme Court

21 Neb. 572

32 N.W. 589

STATE EX REL. HYMER

v.NELSON.

Supreme Court of Nebraska.

April 6, 1887.

Syllabus by the Court.

Where a petition was presented to the county commissioners of F. county, purporting to contain the names of 644 resident electors of said county, asking said board to call a special election for the relocation of the county-seat, the whole number of votes cast in said county at the preceding general election being 729, and a remonstrance signed by 1,164 persons purporting to be electors of said county against the calling of said election was thereupon presented to said board, alleging that said petition was signed by persons who were non-residents of said county, and by minors and others not authorized to sign such petition, held, that a general finding of said board that a large number of persons so disqualified had signed said petition, and that the whole number of lawful petitioners was less than three-fifths of all the votes cast in said county at the preceding general election, was not subject to collateral attack, but, if erroneous, must be reviewed on error. State v. Nemaha Co., 10 Neb. 32, 4 N. W. Rep. 373.

The decision of a special tribunal, where it has jurisdiction of the subject-matter and parties, is conclusive unless reversed or modified in the mode provided by law.

A writ of mandamus will not be granted unless the right of the relator thereto is clear.

Mandamus.

Marquett, Deweese & Hall, for plaintiff.

George H. Stewart, H. L. Merriman, and O. P. Mason, for defendants.

MAXWELL, C. J.

The relator alleges “that he is a resident of the county of Frontier, and that he is a tax-payer in said county; that on the twenty-first day of February, 1887, said defendants being in lawful session at the county seat of said county, the following petition was presented to them: ‘ To the Honorable Board of County Commissioners of Frontier County, Nebraska: We, the undersigned, resident electors of Frontier county, Nebraska, do most respectfully petition your honorable body to forthwith call a special election in said county for the purpose of submitting to the qualified electors thereof a question of relocation of the county-seat.’ This petition was signed by E. K. Bowman, W. G. Phelps, and six hundred and forty-two other citizens and resident electors of said county, and following each name of the petitioners on said petition there was designated the age of the petitioner, and the section, township, and range, or lot on which, or the town or city in which, the petitioner resided, and also the time that said petitioner had resided in said county, in days and years. That at the last general election held prior to the presentation of this petition, of said county, in the fall of 1886, there were seven hundred and twenty-nine votes cast in said county, and no more. That the petitioners, making said application to the said board, constituted more than three-fifths of all the resident voters and electors in said county.” It is also alleged that defendants refused to call such election.

An alternative writ was allowed, to which defendant made return as follows: “That during the session duly appointed and held of the board of commissioners of the county of Frontier, state aforesaid, and on the twenty-first day of February, 1887, a petition, the one referred to in this cause filed, purporting to contain the names of 644 resident electors of said county, was filed in the office of said board, praying for the submission to the electors of said county the question of the relocation of the county-seat of said county; that thereafter, and during the said session, remonstrance, protest, and answer to said petition for submission were filed in the office of said board; that thereafter, and during said session, the board proceeded to and did hear said petition, remonstrance, protest, and answer, and the allegations, proofs, and arguments of the respective parties, and did try the same; that all the allegations above set forth, and in this answer contained, more fully and at large appear by reference to the proceedings had before said board on the hearing and trial aforesaid, a certified transcript of which is hereto attached; that all the facts and things stated in said proceedings, certified as aforesaid, are true and correct; and it did appear to said board on said hearing that the inhabitants of said county were not desirous of changing their county-seat; that said petition for submission was not supported by any proof that it contained the names of resident electors of said county equal in number to three-fifths of the votes cast at the last general election held in said county; that persons who had signed said petition for submission had subsequently thereto signed the remonstrance against the same, as alleged in said protest and answer; that others who had signed said petition for relocation had personally appeared before the board, and withdrew their names from said petition...