55 Neb. 691 | Neb. | 1898
Lead Opinion
In this, an action for mandamus, the relator ashed the issuance of the wait against the respondent, as county clerk of Valley county, and by it his direction to deliver to relator a certificate of election to the office of clerk of the district court of said county. A trial of the issues joined resulted in a judgment in favor of the relator, and the canse is presented to this court for respondent by petition in error.
In 1879 the legislature enacted: “In each county having a population of eight thousand (8,000) inhabitants
“Was there a fixed ratio or number in the state of Nebraska by which the whole number of votes cast at any general election in a county may be multiplied to determine the population of said county at this time?
“Answer. Not for all cases (by statute), but by comparison we can arrive at a fair conclusion. •
“If so, what is the ratio or number?
“Answer. The number which I would use in this case, if deciding it upon that alone, is 5 when based upon a comparatively full vote, and 5¿ when based upon a comparatively light vote.
“Does such ratio or number apply to the whole number of votes cast at said election, or to the whole number of voters residing in said county at the said time?
“Answer. To the whole number of votes cast.”
“Findings of law:
“Is there a legal or fixed ratio by which the whole number of votes cast at an election in a county may be multiplied to determine the population of said county at that time?
“Answer. I think the ratio I have given above is legal, but I do not think it is fixed.
“If so, what is said ratio?
*694 “Answer. The ratio that I would use is 5 for a comparatively full vote and 5-} for ‘off years/ with, a comparatively light vote.
“Does said ratio apply to the whole number of votes cast .at said election, or to the whole number of voters in said county at that time?
“Answer. The whole number of votes cast.
“The court further finds facts as follows:
“That Valley county is now neither a newly settled county or community, nor an old, settled one.
“That if this case was to be decided alone upon the ratio between the votes and population, the ratio that the whole vote bears to the whole population of the state, at any election, is the proper ratio to use for Valley county in this case;'
“That there has been an increasing population in Valley county for over twenty years last past, except 1890, when it was nearly stationary, and in the fall of 1894 and the spring of 1895 when there was some moving away from the county on account of drouth.
“That a great many of those that went away have been ever since steadily returning; and that the population of Valley county is now the largest that it has ever been, and that said county of Valley is now, and has been ever since and prior to the election in the fall of 1895, a county containing 8,000 inhabitants, and was at that time, and lias since that date been, entitled to elect a clerk of the district court, as one of the officers within and for said county.”
One question that is noticed in the argument for plaintiff in error, and Avhich we deem it Avell to settle, is in relation to whether the litigation before us involves the trial of the title to an office. If it does, then it cannot be adjudicated in an action of mandamus. (Anderson v. Colson, 1 Neb. 172; State v. Plambeck, 36 Neb. 401; McMillin v. Richards, 45 Neb. 786.) The question herein was not the relator’s title to an office, but his right to the evidence of his election to an office; and, if the office
The only further point for discussion — and it is stated for relator, by counsel, in the brief filed, to be the only matter of contention in this case — is the sufficiency of the evidence, viewed in connection with the matters of which courts take judicial notice, to sustain the findings and judgment of the trial court. In the case of State v. Long, 17 Neb. 502, wherein the same section of the statute was under examination as is here involved, it was said: “The annual census not being made by statute the basis upon which the population of a city or county at an election succeeding the taking of-the same is to be estimated, there would seem to be no authority for this court to inject into the election law the words ‘as returned by the census taken in 1883.’ The language of the election law is general, ‘that in each county-having 8,000 inhabitants or more there shall be elected,’ etc. This, in the absence of any restriction, would seem to apply to the time the electron was called, and not to the time the census was taken. It is well known that in some of the new counties of the state thousands may be added to their population by immigration in a single year, and this largely during the summer season. It is but reasonable to suppose that this fact was taken into consideration by the legislature in passing the act; hence its general, language. The cities and villages of the state, as well as counties, are classified according to population. Thus, cities containing more than twenty-five thousand inhab
It may be said of the evidence introduced that it did not, in and of itself, establish the population of Valley county at the time of the election of 1895 at any certain number, and did not therefore, in and of itself, furnish a measure by which the population — the main question at issue in the case — could be determined. It may also be said' that the testimony of the various witnesses was composed, and necessarily to a large extent, of opinions, general in their character; but there was, as to matters of fact, no appreciable conflict; and it was established that during the years of 1894 and 1895, by reason of
Of the matters of which it is insisted the courts should take judicial notice, is- the United States census, the school census taken under' the - authority of a statute of the state and by the officers empowered for such purpose, the state and county elections, and the results of each and all of them. We think this insistence is correct. Courts will take judicial notice of the things enumerated, and the results. From the results of one or the
There are other methods contained in the briefs, but in all of them are assumptions or unallowable inferences which make them somewhat unsatisfactory as a basis for settlement of the matters in litigation. Then many of them lead at best to rather unreliable approximations. Courts may not assume j;he existence of something and
Reversed and remanded.
Dissenting Opinion
dissenting.
I dissent from the views expressed by Harrison, C. J., for the reasons I shall now briefly state. The alternative writ of .mandamus Avhich issued from the district court of Valley county required the county clerk to issue to the relator a certificate showing Ms election to the office of clerk of the district court of said county, or show cause why such certificate should not issue. The return to this Avrit presented several issues, but on the trial the stipulations of counsel established all the facts entitling the relator to the writ prayed, except, as contested by the respondent, that, as Valley county contained less, than 8,000 inhabitants, there was no independent office of clerk of the district court in that county. As the respondent was county clerk he was ex-officio clerk of the district court, if there were less than 8,000
Concurrence Opinion
We concur in the foregoing opinion, but, to avoid any' inference as to the competency of such evidence as was offered, we wish to add that in our opinion the onty competent proof of population in such cases is a census. The question not being essentially involved, Ave do not care to state our reasons at length, but might say that one of them is that the legislature cannot be presumed to have contemplated a resort to other evidence, which the opinion of the Chief Justice shows to be wholly conjectural.