State ex rel. Saunders v. Clark

• Decision Date: 07 March 1900
• Citation: 59 Neb. 702,82 N.W. 8
• Parties: STATE EX REL. SAUNDERS v. CLARK, COUNTY CLERK.
• Court: Nebraska Supreme Court

59 Neb. 702

82 N.W. 8

STATE EX REL. SAUNDERS

v.CLARK, COUNTY CLERK.

Supreme Court of Nebraska.

March 7, 1900.

Syllabus by the Court.

1. Section 2, art. 10, of the constitution prohibits the division of a county, where the proposition has not a majority of the legal votes cast thereon.

2. The provisions of said section 2, art. 10, of the constitution do not preclude the legislature from passing a law requiring that the question of county division shall receive the majority of all the votes cast at the election at which the same was submitted to the electors to effect the erection of a new county out of one then existing.

3. Section 11, art. 1, c. 18, Comp. St., is not inimical to section 3, art. 10, of the state constitution.

4. Under said section 11, art. 1, c. 18, Comp. St., to effect the division of a county, the proposition therefor must receive a majority of the legal votes cast at the general election at which the same was submitted, whether cast for the filling of an office or on any proposition.

5. In determining the question of whether the county division has been adopted, the total vote cast in the county at the election at which the same was submitted will be presumed to be the highest vote cast for any office or on any proposition. But this presumption, if not conclusive, may be overcome by proper evidence.

6. A county canvassing board has no authority to find and declare the total vote polled at an election, and a finding in that respect, made by it, will be rejected as surplusage.

7. An exception to the overruling of a motion for a new trial is necessary to obtain a review of the question presented by such motion.

Error to district court, Knox county; Kinkaid, Judge.

Application by the state, on the relation of Sherman Saunders, for a writ of mandamus against Philip B. Clark, county clerk of Knox county. Judgment for defendant, and relator brings error. Affirmed.Lambertson & Hall, W. F. Norris, and W. D. Funk, for plaintiff in error.

Solomon Draper, E. A. Houston, W. L. Henderson, and W. R. Ellis, for defendant in error.

NORVAL, J.

At the general election held in November, 1898, there was submitted to the electors of Knox county the proposition to divide said county, and erect the county of Dewy. The vote was taken as ordered, and the result was canvassed by the various election boards, who made return thereof to the county clerk of Knox county. The respondent, as county clerk, together with two electors of the county, canvassed the returns, and entered the result thereof in the proper records. The said canvassers found and certified that there were cast on the question of county division 2,807 votes, of which 1,427 votes were in favor of the affirmative of the proposition, and the negative received 1,380 votes; that 2,839 votes were cast for the several candidates for the office of governor, which was the highest vote cast for any office, or on any proposition, and the names of 2,993 persons were entered on the poll books as having voted at said election. The relator contends that said proposition received the requisite affirmative vote to compel the erection of a new county, and he instituted this action in the court below for a peremptory writ of mandamus to compel the respondent, as county clerk of Knox county, to certify to the secretary of state, in compliance with the provisions of section 11, c. 18, Comp. St., the name, boundaries, and area of the proposed new county. The district court denied the writ, and error proceeding has been prosecuted by the relator. Section 10, art. 1, c. 18, Comp. St., makes provision for the submission to a vote of the people the proposition to form a new county out of one or more of the existing counties. Section 11 of the same article and chapter provides: “If it shall appear that a majority of all the votes cast at any such election, in the county interested, is in favor of the erection of such new county or counties, the county clerk of said county shall certify the same to the secretary of state, stating in such certificate the name, the territorial contents and boundaries of such new county or counties; thereupon the secretary of state shall notify the governor of the result of election, whose duty it shall be [to] order an election of county officers for such new county or counties at such time as he shall designate, and he may, when necessary, fix the place of holding election, notice of which shall be given in such manner as the governor shall direct,” etc. It will be observed that the legislation just quoted requires for the adoption of the proposition to create a new county out of an existing county that the affirmative of such question shall receive a majority of all the votes cast at the election at which the same was submitted. The respondent insists that the question of erecting a new county out of the county of Knox did not carry by the requisite vote prescribed by statute. The relator, on the other hand, insists that the writ should issue herein against the respondent, and he bases his contention upon the propositions following: First. That said section 11, heretofore quoted, is inimical to the provisions of section 2, art. 10, of the state constitution, and is, therefore, void. Second. Though said section 11 be declared valid, it must be interpreted in harmony with the constitution, and, when so construed, the question of county division received the requisite affirmative vote, and was adopted. Third. That, if said section 11 be sustained, then, under the adjudications of this court, the proposition to erect Dewy county was carried. Should any one of these propositions be determined in favor of the relator, the judgment of the district court must be reversed, and a peremptory writ of mandamus be issued; but, if all of them are not well taken, the writ must be denied. The questions will be taken up, in the order in which we have stated them.

The constitutional provision invoked by the relator (section 2, art. 10) is in the language following: “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.” This section of the fundamental law is a restriction or limitation upon the power to divide a county. Such a division can only be made by the submission of the proposition therefor to the electors of the county interested, and not then unless the question shall have received the sanction of a majority of the legal voters of the county voting thereon. This is so plain that argument could subserve no useful purpose of elucidation. If, therefore, the legislature had not spoken on the subject, it is obvious that the proposition to erect a new county out of the county of Knox has been adopted by the required affirmative vote. But by said section 11, art. 1, c. 18, Comp. St., the lawmaking body has required that the question of county division must receive a majority of all the votes cast at the election at which the same was submitted to authorize the erection of a new county. In State v. Nelson, 34 Neb. 162, 51 N. W. 648, it was ruled that the provisions of section 2, art. 10, of the constitution do not preclude the legislature from requiring a larger vote than a majority of those voting on the question to effect county division. It is strenuously argued that the constitution has relegated the subject of county division to those voting thereon, and, as the framers of the fundamental law have designated a specific and particular class of electors...