MAXWELL, C. J.
This is an original action brought in this court, the cause of action being set forth as follows: “(1) That he is a resident, elector, and taxpayer of Knox County, Neb., and resides in that portion of the county proposed to be effected in the county of Union, and that the defendant is now, and ever since January, A. D. 1890, has been, the duly-elected, qualified, and acting county clerk of said Knox county. (2) That on the 15th day of July, 1890, for the purpose of forming the new county of Union out of the county of Knox, comprising the two southern tiers of townships of said county, a petition, signed by more than a majority of the legal voters residing in the territory proposed to be stricken from Knox county, was duly presented to the county board of said Knox county, that being the only county affected by such division, and, it appearing to the county board that said new county of Union could be constitutionally formed, the question of the erection of said new county of Union was at the next succeeding general election, to-wit, November 4, 1890, duly submitted to the vote of the people of said Knox county. (3) That plaintiff further alleges that at said general election held November 4, 1890, there were cast for state officers 2, 131 legal votes, and no more; that of said number there were cast 1,146 ballots on the question of forming the new county of Union, for new county, and 925 ballots on the question were cast against new county. (4) That 321 ballots, more than a majority of all the legal voters of the county voting on the question, voted for the division of said Knox county, and for the erection of the new county of Union. (5) That all of said votes were properly canvassed and returns made as required by law except the votes cast on the question of forming the county of Union. (6) That the defendant county clerk has failed, neglected, and refused to certify the number of votes cast on the question to the secretary of state, together with the name, territorial contents, and boundaries of such new county of Union, although often requested to do so, and the only reason or excuse given by the defendant why he refuses to so certify to the secretary of state is because the total number of votes cast for new county at said election does not equal three-fifths of all the votes cast at such election, and that a majority of all the votes cast at said election on the question of the erection of said new county is not sufficient in numbers to require him to make the certificate to the secretary of state, and for this reason alone he has refused. (7) Your petitioner alleges that section 2 of article 10 of the constitution provides that no county shall be divided without first submitting the question to a vote of the people of the county, nor unless a majority of all the legal voters of the county voting upon the question shall vote for the same. (8) That the legislature, in 1889, enacted a law to amend section 11, art. 1, c. 18, Comp. St. 1887, by requiring three-fifths of all the votes cast at a general election to be in favor of dividing a county, before the same could be divided; but your petitioner alleges that said act of 1889, known as section 2, c. 5, Laws 1889, contravenes section 2, art. 10, of the constitution, and is unconstitutional and void, and that the act of 1879, carrying into effect the provisions of section 2, art. 10, of the constitution, is still in full force and effect, and by the provisions of said act of 1879 the number of votes required to divide a county was that provided by the constitution, to-wit, a majority of all the votes cast on the question, and no more. (9) That under the provisions of said act of 1879 it is made the duty of the county clerk to certify to the secretary of state the number of votes cast on the question, the name, the territorial contents, and boundaries of a new county, if it shall appear that a majority of all the votes cast on the question of division is in favor of the erection of the new county. This duty the defendant refuses to do. Wherefore the plaintiff prays that a peremptory writ of mandamus may issue out of this court, commanding said defendant forthwith to certify to the secretary of state the number of votes cast for new county, and against new county, together with the name, territorial contents, and boundaries of such new county of Union, and for costs of suit.”
To the petition a general demurrer is filed, and the cause is now submitted on the demurrer. Section 1, art. 10, of the constitution, provides: “No new county shall be formed or established by the legislature which will reduce the county or counties, or either of them, to a less area than 400 square miles, nor shall any county be formed of a less area. Sec. 2. No county shall be divided or have any part stricken therefrom without first submitting the question to a vote of the people of the county, nor unless a majority of all the legal voters of the county voting on the question shall vote for the same. Sec. 3. There shall be no territory stricken from any organized county unless a majority of the voters living in such territory shall petition for such division, and no territory shall be added to any organized county without the consent of the majority of the voters of the county to which it is proposed to be added; but the portion so stricken off and added to another county, or formed, in whole or in part, into a new county, shall be holden for and obliged to pay its proportion of the indebtedness of the counties from which it has been taken.” Chapter 18, art. 1, Comp. St., provides: “The boundaries of the several counties of this state shall remain as they are established until the same be changed according to law.” “Sec. 4. When a majority of the legal voters residing upon any territory shall petition the county board of their own county, and also of the county to which they desire such territory to be transferred, for leave to have such territory transferred to such county, it shall be the duty of the several county boards so petitioned to submit the question at the next general election in said counties: provided, that no such petition shall be granted until after the expiration of three years from last submission of the question. Sec. 5. Notices of such election shall contain a description of the territory proposed to be transferred, the names of the counties from and to which such transfer is intended to be made, and shall be posted with the other notices for general elections. Sec. 6. The ballots used in the said elections may be in the following form, to-wit, ‘For transferring territory,’ and ‘Against transferring territory.’ When, if a majority of the voters voting upon said question in the county from which said territory is proposed to be taken, and a majority of the voters of the county to which the same is proposed to be transferred, shall be, ‘For transferring territory,’ then the said territory shall be transferred to and become a part of the county to which it is proposed to transfer the same, on and after the first day of January succeeding such election, and shall be subject to all the laws, rules, and regulations thereof: provided, that all assessments and collections of taxes, and judicial or other official proceedings, commenced prior to said first day of January, shall be continued, prosecuted, and completed in the same manner as if no transfer had been made: and provided, further, that all township or...
