State ex rel. Romig v. Wilson

• Decision Date: 25 April 1888
• Citation: 24 Neb. 139,38 N.W. 31
• Parties: STATE EX REL. ROMIG ET AL. v. WILSON ET AL., VILLAGE TRUSTEES.
• Court: Nebraska Supreme Court

24 Neb. 139

38 N.W. 31

STATE EX REL. ROMIG ET AL.

v.WILSON ET AL., VILLAGE TRUSTEES.

Supreme Court of Nebraska.

April 25, 1888.

Syllabus by the Court.

The judges and clerks of the election in the village of N. duly certified the returns of the election held on the 5th day of April, 1887, to the board of trustees of said village. The returns so certified were duly delivered to the village board without change or mutilation. Upon a canvass of the returns, the trustees, as a board of canvassers, received evidence, and changed the return by striking therefrom two votes said to have been illegally cast, thus changing the result of the election. Upon a proceeding for a writ of mandamus to compel the canvassing board to reassemble and canvass the vote according to the actual return, it was held, that they had no authority to change the returns of the election board, and that mandamus would lie to compel them to canvass the returns as received.

Error to district court, Antelope county; CRAWFORD, Judge.

Petition by George H. Romig and George W. Meyers for mandamus to Robert Wilson, Charles L. Harris, Howard W. Fink, and George W. Rapp, as members and constituting the board of trustees of the village of Neligh, to compel them to canvass the votes cast at an election of village trustees, as returned to them by the judges and clerks of election. Judgment for defendants, and petitioners allege error.Allen & Robinson, for plaintiffs in error.

REESE, C. J.

This action was instituted in the district court of Antelope county, and was an application for a writ of mandamus to compel defendants in error to canvass the votes cast at the election held in the village of Neligh on the 5th day of April, 1887, as returned to them by the judges and clerks of election. A trial was had in that court, which resulted in a general finding by the court in favor of defendants, and the cause was dismissed. Relators allege error and bring the case to this court by proceedings in error. The assignments of error contained in the petition are-- First, that the court erred in entering a final judgment in said case, dismissing the petition and refusing the writ; and, second, that the court erred in overruling the motion for a new trial. It appears by the testimony that after the close of the polls, the judges and clerks of election proceeded to canvass the vote, when two ballots were found folded together in such a form as to indicate that they had been voted as one ballot;...