Twp. of Inavale v. Bailey

• Decision Date: 28 October 1892
• Citation: 35 Neb. 453,53 N.W. 465
• Parties: TOWNSHIP OF INAVALE v. BAILEY, COUNTY CLERK, ET AL.
• Court: Nebraska Supreme Court

35 Neb. 453

53 N.W. 465

TOWNSHIP OF INAVALE

v.BAILEY, COUNTY CLERK, ET AL.

Supreme Court of Nebraska.

Oct. 28, 1892.

Syllabus by the Court.

Section 912 of the Consolidated Statutes provides that “two thirds of the whole number of supervisors elected shall constitute a quorum, and a majority thereof, if present, may transact business.” In changing the boundaries of a township there were present 17 members of the board, of which 8 voted in favor of the change and 7 against and 2 refrained from voting. Held, that it was the duty of all present to vote, and those not voting must be counted in making up the aggregate, and that, as less than a majority had voted in favor of the proposition, it had failed.

Error to district court, Webster county; GASLIN, Judge.

Action by the township of Inavale against Judson Bailey, as county clerk, and others, praying that a change in plaintiff's boundary line be declared illegal and void, and for other relief. A demurrer to the petition was sustained, and plaintiff brings error. Reversed.John R. Wilcox, for plaintiff in error.

Case & McNeny, for defendants in error.

MAXWELL, C. J.

A demurrer to the petition was sustained in the court below, and the action dismissed. The petition is as follows: “Your petitioner says that it is one of the townships of Webster county, Nebraska; that defendant Walnut Creek township is also one of the townships of said county; that defendant Judson Bailey is county clerk of said county, and defendant Manly McNitt is treasurer of said county. Your petitioner says that prior to and up to June 21, 1888, the south boundary of Inavale township was the Republican river, and the boundary of defendant Walnut Creek township was the same portion of the Republican river; that some time prior to said June 21, 1888, the defendant Walnut Creek township, without notice to plaintiff, presented to the defendant board of supervisors a petition, signed solely by residents and property owners of said Walnut Creek township, praying the said board to change the boundary of the said Inavale and Walnut Creek townships so as to make the township line between towns one and two, range twelve, the boundary between said townships, instead of the river. Plaintiff says that the effect of this change, when made, was to transfer from Inavale township to Walnut Creek township the following lands and the personal property of those living thereon, to wit: Lots 1, 2, 3, 4, 5, of section 1, town 2, range 12; lots 1, 2, 3, 4, 5, and 6, section 2, town 1, range 12; N. E. 1/4 the N. 1/2 and S. E. 1/4 of N. W. 1/4, and lots 3, 4, 5, and 6, sec. 3, town 1, range 12; N. W. 1/4 the N. 1/2 N. E. 1/4, and lots 3, 4, 5, and 6, section 4, town 1, range 12; all the N. 1/2, and lots 3, 4, 5, and 6, section 5, town 1, range 12; all section 6, and N. 1/2 N. E. 1/4 the N. E. 1/4 N. W. 1/4, and lots 4, 5, and 6, section 7, town 1, range 12. Plaintiff says that all the owners of said land and property remonstratedand objected against said change, but that the said defendant board of supervisors illegally and unlawfully made such change, and defendant Bailey threatens to put, is putting, or has put, said property upon the tax list of Webster county, Nebraska, for the year 1888, as though said property was in Walnut Creek township, and to put it upon the...