State ex rel. Omaha v. Bechel

• Decision Date: 06 October 1887
• Citation: 22 Neb. 158,34 N.W. 342
• Parties: STATE EX REL. OMAHA, ETC., ST. RY. CO. v. BECHEL.
• Court: Nebraska Supreme Court

22 Neb. 158

34 N.W. 342

STATE EX REL. OMAHA, ETC., ST. RY. CO.

v.BECHEL.

Supreme Court of Nebraska.

October 6, 1887.

Syllabus by the Court.

Where the question of giving consent to a street-railway company to construct and maintain a street railroad upon the streets of the city of Omaha was submitted to the electors of said city on the day of the general city election, and the ballot upon that proposition was taken at the same place, by the same election officers, and but one poll-list made, and the votes were canvassed and returned in some of the precincts and wards upon the same tally-sheet and return, but in all of the wards a separate ballot-box was prepared, into which the votes upon the proposition were deposited, but without other formality to separate the vote from the vote of the general election, it was held that, in order to give the required consent, the affirmative of the proposition must receive a majority of all the votes cast at such election.

Mandamus.

Congdon, Clarkson & Hunt, for plaintiff.

J. L. Webster, for defendant.

REESE, J.

This is an application for a peremptory writ of mandamus to the council and city clerk of the city of Omaha, for the purpose of compelling them to certify the result of an election held in said city on the third day of May, 1887, at which it is alleged that a majority of the electors of said city had given their consent to the construction and operation of a street railroad by plaintiff upon the streets of the city. The cause is submitted upon the petition and motion for the writ, in connection with a stipulation of such material facts as do not appear in the petition. These facts may be briefly stated as follows:

Plaintiff is a corporation organized under and by virtue of the laws of this state, for the purpose of constructing and operating a street railroad on and through certain streets of the city of Omaha. The defendants are the councilmen and city clerk of the city of Omaha, which is a municipal corporation organized under the laws of the state. That at the time of the passage and approval of the ordinance hereinafter referred to, and the holding of an election thereunder, it was a city of the first class, but that it is now known as a city of the “Metropolitan Class,”--so designated by law; and that defendants, councilmen, are the successors in office of the councilmen while the city was denominated a city of the first class. That prior to the third day of May, 1887, plaintiff made application to the city council for the passage of an ordinance providing for the submission to the electors of the city, the question of consent to the construction and operation of a street railroad by said plaintiff through certain streets therein; and that thereupon the city council passed an ordinance providing for such submission, and requesting the mayor to call an election that the question might be voted upon. The mayor gave notice, as provided by law, that an election would be held on the third day of May, 1887, that being the day of the general city election. The registry of voters for the city election showed that there were 10,045 names registered. There were 8,146 votes cast at the general election. The number of votes cast upon the question of consent to plaintiff to construct and operate its road was 1,650; of which 1,470 were in the affirmative, and 180 in the negative. There were but the usual number of judges and clerks of election. No separate poll-list of those who voted upon the question submitted was kept. A separate ballotbox was prepared; and when an elector came to the polls to vote, if his name was upon the list of registered voters, or if he proved himself to be an elector, he was permitted to vote; his name was checked off the registration list, and placed on the duplicate poll-books. This was done whether he voted a ticket for the general election, and for or against the proposition submitted, or simply on the proposition; but one poll-list being made. The ballot-box for the general city election alone, determined the number of votes cast at that election; and the ballot-box for the proposition alone determined the number of votes cast on the proposition. At the close of the polls a tally-sheet was made, and the votes canvassed in the usual way. In some...