State ex rel. Stevenson v. Babcock
| Decision Date | 12 February 1885 |
| Citation | 22 N.W. 372,17 Neb. 188 |
| Parties | THE STATE OF NEBRASKA, EX REL. THOMAS B. STEVENSON, v. H. A. BABCOCK, AUDITOR OF PUBLIC ACCOUNTS |
| Court | Nebraska Supreme Court |
ORIGINAL application for mandamus.
WRIT DENIED.
J. N Paul, W. H. Snell, A. C. Troup, E. H. Peterson, and M. L Hayward, for relator, cited: Gillespie v. Palmer, 20 Wis. 572. Dayton v. Saint Paul, 22 Minn. 400. County of Cass v. Johnston, 5 Otto, 360. Saint Joseph v. Rogers, 16 Wall., 664. People v Garner, 47 Ill. 523. L. & N. R. R. v. County, 1 Sneed, 691. State v. Clark, 54 Mo. 39. People v. Wiant, 48 Ill. 266. County Seat of Linn County, 15 Kan. 525.
William Leese, Attorney General, for respondent, cited: Enyart v. Trustees, 25 Ohio St. 618. State v. Sutterfield, 54 Mo. 391. Everett v. Smith, 22 Minn. 53. State v. Swift, 69 Ind. 505.
This is an application for a mandamus to compel the auditor to draw a warrant in favor of the relator at the rate of $ 5.00 per day for services rendered by him as a member of the legislature. In 1883 the legislature submitted to the electors of the state the following proposition to amend the constitution: The term of office of members of the legislature shall be two years, and they shall receive a salary of three hundred dollars for their services during said term, and ten cents for every mile they shall travel in going to and returning from the place of meeting of the legislature, on the most usual route; Provided, however, That neither members of the legislature nor employees shall receive any pay or perquisites other than their salary and mileage. Each session, except special sessions, shall be not less than sixty days. After the expiration of forty days of the session no bills nor joint resolutions of the nature of bills shall be introduced unless the governor shall by special message call the attention of the legislature to the necessity of passing a law on the subject matter embraced in the message, and the introduction of bills shall be restricted thereto; Provided, The ballots at said election shall be in the following form: "For proposed amendment to the constitution relating to legislative departments;" "Against proposed amendment to the constitution relating to legislative department." Section 1 of article XV. of the constitution provides: "Either branch of the legislature may propose amendments to this constitution, and if the same be agreed to by three-fifths of the members elected to each house, such proposed amendments shall be entered on the journals, with the yeas and nays, and published once each week in at least one newspaper in each county where a newspaper is published for three months immediately preceding the next election of senators and representatives, at which election the same shall be submitted to the electors for approval or rejection, and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this constitution." * * * It is agreed by the parties that the whole number of votes cast at the election in November, 1884, was 134,000 for governor and other state officers, and 132,000 for senators and representatives; and in favor of the proposed amendment 51,959, and 17,766 against the same. If the 51,959 votes cast in favor of the proposed amendment are sufficient to adopt the same and make it a part of the constitution, then the relator is entitled to the writ, otherwise not.
The language of section 1, article XV., is that "if a majority of the electors voting at such election adopt such amendments the same shall become a part of this constitution." This would seem to require a majority of all the votes cast at that election, otherwise the words "voting at such election" would be entirely without meaning. But these words evidently were intended as a restriction upon the right to change the fundamental law, and not permit a minority of the people of the state to incorporate new provisions therein. And this view is strengthened by an examination of section 2, article XV., where it is provided that a new constitution, when "submitted to the electors of the state and adopted by a majority of those voting for and against the same, shall then take effect in the manner therein provided.
The question here involved was before this court in State v. Lancaster County, 6 Neb. 474. In that case the question of township organization was submitted to the electors of Lancaster county, and 952 votes were cast in favor of and 601 against the same, while the whole number of votes cast in the county at that election for the various officers voted for was 2,451.
Section 5, article X., of the constitution provides that "the legislature shall provide by general law for township organization, under which any county may organize whenever a majority of the legal voters of such county voting at any general election shall so determine." It was held that, as it required 1,226 votes to constitute a majority of all the voters who voted at such election, therefore township organization was not adopted.
In People v. Brown, 11 Ill. 478, the sixth section of the seventh article of the constitution of that state declared that "The General Assembly shall provide by a general law for a township organization, under which any county may organize whenever a majority of the voters of such county at any general election shall so determine." At the general election in Woodford county in the year 1850 more than 600 votes were cast in the county, while but 153 votes were given for and 107 against township organization. The court say (page 480):
In Enyart v. Trustees, etc., 25 Ohio St. 618, the act of the legislature authorized the trustees of a township to levy a special tax for the purposes stated in the act, but with a proviso "that said trustees shall not cause said levy to be made until a majority of the electors of said township at some regular election shall vote in favor of said levy." The election at which the question of levying the tax was submitted was a presidential election, and it was held by the supreme court of Ohio that the votes cast for President and Vice-President furnished the basis by which it was to be determined whether or not the levy was authorized. In the opinion "by the court" it is said "The record shows that although the number of votes in favor of levying the tax was a majority of all the votes cast on that question, they were not a majority of all the votes cast for electors of President and Vice-President, and hence the levy was never authorized."
The case of The People v. Wiant, 48 Ill. 263, was an application for a mandamus to compel the county treasurer to remove his office to the town of Wheaton, which, it was alleged, had been recently selected as the county seat of Du Page county. The act under which the election was held provided that if it should appear upon a canvass of the votes that a majority of the legal voters of the county had voted for the removal to Wheaton, then that place should be the county seat of said county. The returns of the election showed that more votes were cast for the selection of a circuit judge than upon the question of the removal of the county seat; and that while a majority of the votes cast upon the question of county seat removal were in favor of such removal, yet there was not a majority of the whole vote cast and the mandamus was denied.
Walker, J., in delivering the opinion of the court, said: "It is not the vote cast upon that single question that is to govern, where it occurs at any other election held at the same time, but it must appear that a majority of all the votes cast at that election were in favor of the removal."
In The State v. Winkelmeier, 35 Mo. 103, the legislature had given permission to the county of St. Louis to allow the sale of refreshments on any day of the week when authorized by a majority of the legal voters of the respective cities. Five thousand votes were cast for such permission out of thirteen thousand cast for city officers at the election on the same day, it was held not the vote of a majority, although only two thousand votes were cast against the proposition, and that no authority for such sales were given by the election.
In Everett v. Smith, 22 Minn. 53, the constitution of the state declared that "all laws for removing county seats shall, before taking effect, be submitted to the electors of the county or counties to be affected thereby at the next general election after the passage thereof, and be adopted by a majority of such electors." It was held by the supreme court "that the words 'majority of such electors' as used in the provision of the constitution mean a majority of the electors voting at the election." And the same was held in Taylor v. Taylor, 10 Minn. 107, and in Baynard v. Klinge, 16 Minn. 249.
It may be seen by reference to Redden v. Smith, supra, the construction placed upon the language of the constitution of Minnesota is in exact accordance with the language of the clause of the constitution of Nebraska now under consideration, viz., "a majority of the electors voting at such election." And in Bayard v. Klinge supra, the legislature had passed an act for the removal of the county seat of Wabasha county from Wabasha to Lake City, but by the seventh section of said act it was provided that the act should take effect and be in force after its submission "to the election of said county at the next general election after the passage thereof, and its adoption by a...
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