State ex rel. Rowe v. Emanuel
| Decision Date | 23 December 1942 |
| Docket Number | 31468. |
| Citation | 7 N.W.2d 156,142 Neb. 583 |
| Parties | STATE ex rel. ROWE et al. v. EMANUEL et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
Where township organization has been adopted in a county, and the county divided into supervisor districts, and after a state and federal census it appears from an examination of the number of votes cast in a general election that the inhabitants have become unequal in number in the several districts, then a mandatory duty is imposed upon the board of supervisors to redistrict the county into districts in compliance with statutory provisions, and as nearly as possible with regular boundary lines and in regular and compact form and shapes, each district to contain as nearly as possible the same number of inhabitants as any other district.
William H. Lamme, of Fremont, for appellants.
W J. Courtright, of Fremont, for appellees.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.
This is a mandamus action and presents the question of whether the word "may" as used in section 26-269, Comp.St.1929 imposes a mandatory duty or a discretionary authority to act. The trial court held that the word was mandatory. Respondents appeal. We affirm the decision of the trial court.
The action grows out of the following situation. Dodge county has been for many years organized into seven supervisor districts. Five of those districts are entirely without and two entirely within the city of Fremont. The 1940 federal census shows the population of the city of Fremont to be over 49 per cent. of the total for the county as against 39 per cent. in 1910. At the general election in 1940 the vote of the city of Fremont was over 49 per cent. of the total vote of the county as against 34 per cent. at the time of the adoption of the present district boundaries. Fremont therefore, with a population of almost one-half of the county's total, elects but two of the seven supervisors. The plaintiffs called these matters to the attention of the defendants, as the board of supervisors, submitted a plan of redistricting that would have made the population of each district approximately the same and asked its adoption. The defendants, excepting Myron L. Bodell, voted against redistricting and have since refused to act. The relators, electors and taxpayers of Dodge county, sought an alternative writ of mandamus to compel the respondents, the members of the board of supervisors of the county, to redistrict the county "in compact" form in accordance with the law so that the population, as shown by the general election of 1940, may approach equal numbers in each supervisor district or to show cause. The relators do not seek the adoption of their plan by this action, but do seek a determination of the law and "to enforce" its obedience.
To this application the respondents demurred, contending that the petition did not state a cause of action. The demurrer was overruled.
The respondents then answered admitting the facts alleged in relators' application, and alleged that the city of Fremont was located in the southeast corner of the county, and stated that the county had 198 miles of county road, 279 miles of county drainage ditches, and 976 bridges and culverts across running streams; that each of the five districts outside the city of Fremont is compact in form, contains a somewhat equitable division of area, roads and bridges, that each supervisor has charge of the expenditure of money for roads and bridges in his district, superintends the same, makes purchases of equipment and employs labor; that to enlarge or change the present boundaries would make for inefficiency, increased expense and more difficult administration. They further assert that, even though there are fewer voters in the country districts, the needs of the people in the country districts are different from those in Fremont, and that supervisors residing in the city may not readily respond to the needs of the people in the rural districts. The respondents further allege that the assessed valuation of the property within the city of Fremont is $7,976,225, and that of the balance of the county is $29,550,125. Respondents denied that it is their duty to redistrict, and allege that they had a right to and did exercise their discretion in refusing to redistrict.
To this answer the relators filed a motion for judgment on the pleadings. The trial court sustained the motion of relators and ordered the defendants to "proceed promptly in their official capacity to revise the supervisor districts of Dodge county so as to adjust them into seven supervisor districts, compact in form, making each district so far as reasonably possible as nearly equal in population as may be." Costs were taxed to the respondents other than Myron L. Bodell. From this order respondents appeal.
Stated briefly, the relators contend for supervisor districts containing substantially an equal number of people. The respondents contend that supervisor districts containing an unequal population may be maintained where the geography requires and business administration and needs may better be considered and served, and that tax revenues may be considered in determining whether or not to change existing boundaries of supervisor districts. Which position is sustained by law?
Section 26-269, Comp.St.1929, provides as follows: The above section must be considered in connection with other provisions of the same act. Section 26-204, Comp.St.1929, provides for the original division of a county into supervisor districts after the adoption of township organization. In the original act (Laws 1895, ch. 28, sec. 4) and in the above section it is provided that the districts shall be "divided as nearly as possible with regular boundary lines and in regular and compact form and shapes, and such districts shall as nearly as possible have the same number of inhabitants as any other...
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