State ex rel. Willard v. Stearns

• Decision Date: 04 January 1881
• Citation: 7 N.W. 743,11 Neb. 104
• Parties: STATE EX REL. WILLARD v. STEARNS AND OTHERS.
• Court: Nebraska Supreme Court

11 Neb. 104

7 N.W. 743

STATE EX REL. WILLARD

v.STEARNS AND OTHERS.

Supreme Court of Nebraska.

Filed January 4, 1881.

Original proceeding in mandamus.

M. H. Sessions and Sibbett & Fuller, for relator.

T. M. Marquett, C. J. Dilworth and Reese & Gilkerson, for respondents.

MAXWELL, C. J.

It appears from the record that on the sixteenth day of June, 1879, it having been made to appear to the governor, by the affidavits of three freeholders of Nance county, that said county contained a population of not less than 200 inhabitants, and that 10 or more of the same were tax payers therein, who petitioned the governor to appoint O. E. Stearns, George S. McChesney, and J. W. Whiting to act as special county commissioners in and for said county, that thereupon the governor did appoint the persons above named special commissioners, who qualified and entered upon the duties of their office. Said commissioners thereupon divided said county into five precincts, and on the twentieth day of September, 1879, fixed upon the fourth day of November, 1879, as the time for holding an election for the various precinct and county officers of said county, and for the permanent location of the county seat; that on the question of the location of the county seat there were 202 votes cast, of which the N. 1/2 of section 13, township 17, range 4 W., received 95 votes; the N. W. 1/4 of section 7, township 17 N., range 5 W., 15 votes; Fullerton, 89 votes; that upon a canvass of the votes by the defendants, 40 votes, which had been cast in Genoa precinct for the location of the county seat on the N. 1/2 of section 13, township 17 N., of range 4 W., were thrown out and not counted by said defendants, the rejection of which votes gave Fullerton a majority of all the votes cast, and it was thereupon declared the county seat.

It is now sought to compel the defendants to re-assemble and perform their duty by canvassing all the votes returned. A number of defences are interposed, the principal of which are-- First, that the matter has already been adjudicated; second, that the relator does not show a sufficient interest to bring and maintain the action; third, that the defendants have no further power or authority in the premises; fourth, there is a plain and adequate remedy at law by contest. It appears from the record that proceedings were instituted in the district court of Merrick county to compel the defendants to canvass the votes in question, which proceedings were afterwards dismissed. The grounds of the motion were irregularities in the proceedings, and the motion seems to have been properly sustained, as, in addition to the grounds set forth in the motion, it is clear that the court had no jurisdiction. There has, therefore, been no adjudication upon the merlts of the case, and the proceedings referred to are not a bar to this action.

The objection that the relator cannot maintain the action is not well taken. Where the question presented is one of public right, and the object of the action is to enforce the performance of a public duty, it is sufficient for the relator to show that he is a citizen, and as such interested in the execution of laws. Hall v. The People ex rel. 57 Ill. 313;State v. Judge, 7 Ia. 202; Hamilton v. The State, 3 Ind. 458;The People v. Halsey, 37 N. Y. 348;State v. Shropshire, 4 Neb. 413.

Sufficient appears in the application to show that the relator is a citizen and interested in the execution of the laws. This statement should have been made in the alternative writ also, as the writ must contain a statement of all the facts relied on to enable the party to the relief...