State ex rel. Saunders v. Clark
| Decision Date | 07 March 1900 |
| Docket Number | 10,891 |
| Citation | 82 N.W. 8,59 Neb. 702 |
| Parties | STATE OF NEBRASKA, EX REL. SHERMAN SAUNDERS, v. PHIL B. CLARK, AS COUNTY CLERK OF KNOX COUNTY, NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR from the district court of Knox county. Tried below before KINKAID, J. Affirmed.
AFFIRMED.
Lambertson & Hall, William F. Norris and W. D. Funk, for the relator argued that the question for the determination of the court is, whether the alternative writ of mandamus, heretofore granted in this case, be made peremptory. It is admitted that the question of county division was duly submitted, at the general election of 1898, to the electors of Knox county that at said election 2,807 votes were cast on the question 1,427 being in favor of and 1,380 against the proposition; that for governor 2,839 votes were cast, being the largest number cast on any proposition or for any candidate, voted for at such election; that the total number of names registered on the poll-books, as having voted, or attempted to vote, at said election was 2,993. From these undisputed facts the relator insists that it is the duty of the respondent to certify the number of votes, the name, boundaries and area of the new county to the secretary of state in compliance with law.
The relator rests his contention upon three propositions: First, that the statute of 1897 relating to counties, repealing section 2, chapter 26, Session Laws of 1895 (Session Laws, 1897, p. 186, ch. 21), contravenes the constitution of the state and is void; second, that, if said statute be held valid, it must be construed in harmony with the constitution; and, under such construction, a majority vote was cast in favor of county division, and it was carried; third, that, if the statute of 1897 be held valid, as an independent statute, a majority of the vote cast was in favor of county division.
Counsel for relator cited Bayard v. Klinge, 16 Minn. 221; State v. Babcock, 17 Neb. 193; State v. Lancaster County, 6 Neb. 474; Gillespie v. Palmer, 20 Wis. 572; State v. Roper, 47 Neb. 417; Tecumseh Nat. Bank v. Saunders, 51 Neb. 801.
The cause was argued orally, for the relator, by Frank M. Hall, Esq.
Solomon Draper, E. A. Houston, W. L. Henderson and W. R. Ellis, for the respondent, criticised the application of State v. Babcock, supra, to the facts in this case; and said relator's counsel was inconsistent in the various uses of Bayard v. Klinge, supra, which they had made in their brief. Counsel for respondent also cited and quoted from State v. Nelson, 34 Neb. 162.
The case was argued orally, for the respondent, by W. L. Henderson and W. R. Ellis.
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 Dewey. 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, chapter 18, Compiled Statutes, 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, article 1, chapter 18, Compiled Statutes, 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, territorial contents, and boundaries of such new county or counties; whereupon the secretary of state shall notify the governor of the result of the 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, article 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 Dewey 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 (sec. 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, article 1, chapter 18, Compiled Statutes, the law-making 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, article 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...
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