34 Neb. 372 | Neb. | 1892
This is a mandamus proceeding begun in the district court of Hamilton county by the relator, John W. Huering, against the respondents, Richard H. Peard, county clerk of said county, L. W. Shuman, his deputy, John O. Ferguson, Jr., Chas. P. Whiteside, and Oscar D. Shanklaud. The material facts, according to the stipulation of counsel, are as follows: '
Hamilton county is divided into three commissioner districts, numbered the first, second, and third districts. The
On a hearing by the district court there was a finding and judgment for the relator and peremptory mandamus allowed requiring the respondent Shankland to deliver up and surrender to the' county clerk aforesaid his certificate of election, and requiring the canvassing board to recanvass
It has been held that a law creating a new county, leaving a part of its territory unorganized so that the voters within such portion could not participate in the election of county officers, was inoperative and void. (People v. Maynard, 15 Mich., 463; Lanning v. Carpenter, 20 N. Y., 447.)
In discussing the question of the right of a contestant to have votes counted in his favor which are found in the wrong ballot box, in those states where provision is made for separate boxes for state and county offices and members of congress, Judge McCrary holds, sections 197 and 198, that ballots should not be rejected simply because they may have been deposited in the wrong box. He concedes, however, that the presumption is against their validity, and that the party seeking to have such ballots counted should be required to show affirmatively that they were fairly and honestly cast by legal votei’s. People v. Bates, 11 Mich., 362, fully sustains the rule as stated above.
This case is clearly within the reasoning of these authorities. We will concede that in the absence of proof that the five votes in this case were cast by qualified voters of the third commissioner district, they would be presumptively void and should be rejected. We are, however, relieved of any such embarrassment since it is admitted that the votes in question were all cast by legal voters of the district. It has been repeatedly decided in this country
Reversed and dismissed.