37 Neb. 299 | Neb. | 1893
This is an action of quo warranto brought by the relator1 J. C. Crawford against W. F. Norris, the present judge of the eighth judicial district. The material allegations of the information are: That at the general election held on the 3d day of November,.1891, in the eighth judicial district of the state of Nebraska, the whole number of votes cast for judge of the district court, as canvassed and returned by the board of canvassers, was 7,468, of which the defendant is alleged to have received 3,775 and the relator 3,693, and that upon the canvass of said votes said
We then have the following issues :
a. Whether the Indians of Omaha and Blackbird precincts, in Thurston county, who voted were electors.
b. Whether the Indians of Winnebago and Perry precincts, in said Thurston county, who voted were electors.
c. If these Indians were voters, should the ballots cast by them be rejected because the polling places at which they were cast were on lands in said Thurston county known as the Omaha and Winnebago Indian reservations?
d. Shall the ballots cast for the defendant on which he
e. Shall the ballots cast for the defendant on which he was designated “ W. F. Norris, republican, W. F. Norris, independent,” be counted?
/. Shall the ballots cast for the defendant on which he was designated “W. F. Norris, republican, W. F. Norris, people’s independent,” be counted?
This cause was sént to a referee to take the evidence and report his findings of fact. He has done so, faithfully and carefully, but as both parties to this proceeding have filed exceptions to the referee’s report., we have been compelled to read the entire testimony, and shall construe-it without reference to the report of the referee, while cheerfully acknowledging the assistance the report has afforded us.
Were the Indians of Omaha and Blackbird precincts, in Thurston county, electors?
The record shows that the Indians who voted at the election in Omaha and Blackbird precincts in November, 1891, were male persons over twenty-one years of age, all born within the territorial limits of the United States and territories, and were born members of the Omaha tribe of nation of Indians; that each of said persons so voting had, before said election, taken his land in severalty; had taken possession thereof and received his patent therefor, in accordance with the terms of the act of congress approved February 8, 1887.
Article 7, section 1, of the constitution of this state provides that all male persons of the age of twenty-one years, or upwards, who have resided in the state six months, and who are citizens of the United States, shall be electors.
Section 6 of the act. of congress approved February 8, 1887, provides: “And every Indian born within the territorial limits of the United States, to whom allotments (pf land) shall have been made under the provisions of this
In State, ex rel. Fair, v. Frazier, 28 Neb., 438, it is said, in substance, that in order to establish an Indian’s right; to'citizenship, and hence to vote at an election in this state, it in list be proved that such Indian was born within the-territorial limits of the United States, and that an allot-i frient of land had in fact been made to such Indian by the government of the United States in pursuance of the act of congress above mentioned, or some other law or treaty.
The Indians, then, of Omaha and Blackbird precinctsfvho voted at the election of November 3, 1891, were electors within the meaning of the constitution of the staté,. ánd the act of congress quoted abové.
Were the Indians of Winnebago and Perry precincts, inThurston county, voters?
The evidence in this record shows that the Indians whovbted at the election held November 3,1891, in Winnebago and Perry precincts were, at the time of said election, male-persons over twenty-one years of age; that they were born within the territorial limits of the United States, and were-born members of the Winnebago tribe of Indians; that each and every one of said Indians who voted had, before the election, selected and applied for his allotmént of land in severalty under the terms of said act of congress that each of the Indians so voting had taken possession of his land; that the special agent, appointed by the government for the allotting of lands to Indians, had allotted to each or said Indians, so voting, his land in^severalty; had issued certificates to said Indians for such allotments and transmitted the schedules of said allotments'to the secretary of the -interior for his approval, but that at the date of the election the selection of land in severalty made by the Indians, and the allotment thereof made by the government, had not been formally approved, nor ' the patent issued'
Now, it is contended by the relator that these Winnebago Indians, although born within the territorial limits of the United States, and although' they had selected their lands in severalty in compliance with the provisions of said' act of congress, taken possession of said lands, and such selections had been approved by. the agent of the" United States appointed to make the allotments, the certificates of allotments had been issued to the beneficiaries, and such allotments certified to the secretary of the interior, yet because at the date of the election that officer had not formally approved of the allotments made, and the allottees had not actually received their patents for the lands allotted, they were therefore not entitled to vote. We do not so construe the act. By section 6 thereof it is provided: “And every Indian born within the territorial limits'of the United States to whom allotments shall have been made under the provisions of this act,” etc., and section 3 of said act provides that the United States shall make the allotments through a special agent appointed by the president for the purpose, and when such allotments are made, certify the fact to the secretary of the interior, and upon his approval of the allotments made by the govenment, patents shall issue therefor. The part to be taken by the Indian in this proceeding is much like that taken by a man “taking up a homestead.” He selects the land he wishes, and the local authorities of the government confirm or reject his selection.' Now, these Winnebago Indians selected each his allotment of land in severalty under the terms of the act of congress and took possession of said lands. The special agent of the government made the allotments, 'issued the certificates therefor, reported his action to the
The learned counsel for relator very truly say “that the government of the United States is one Of enumerated powers, the national constitution being the instrument which specifies them, and in which authority should be found for the exercise of any power which the national . government assumes to possess,” and then proceed to argue that the act of congress known as the “Dawes bill” is unconstitutional. The claim is that it violates section 8, article 1, of the constitution of the United States, which provides that congress shall have power “ to establish an uniform rule of naturalization;” that the rule prescribed by the law is not uniform. The argument is very able and
An analysis of the “Dawes bill” discloses that it prescribes a rule of naturalization only for Indians born withiu the territorial limits of the United States and for such of those, 1, to whom lands have been allotted in severalty, and 2, such as have voluntarily taken up their residence in the United States separate and apart from any tribe of Indians therein and adopted the habits of civilized life.
c. Are the votes cast by these Indians to be rejected because the polling places at which they were cast were located on their reservations?
Relator 'insists that neither the state of Nebraska nor the county of Thurston had any jurisdiction over these reservations ; that the establishing of election precincts and holding elections thereon were illegal and the votes cast thereat should be thrown out.
,• d. Shall the ballots cast for the defendant on which he Xvas designated “W. F. Norris, republican-independent,’* be counted? \ ,
é. Shall the ballots cast for the defendant on which he wais designated “ W. F. Norris, republican, W. F. Norris, independent,” be counted?
•/. Shall the ballots cast for the defendant on which he was designated “W- F. Norris, republican, W. F. Norris, people’s independent,” be counted?
■We answer1 that all of said ballots were rightfully counted for the defendant and for the following reasons.:
It was the duty of the county clerks in preparing the official ballots to place the defendant’s name thereon as a candidate for each of the parties by which he was nominated.- The clerks prepared the ballots without suggestions from either party to this proceeding and did so without fraud and with the most honest of intentions. The evidence also shows that there was no party by the name of “ independent ” which polled in said district one per centum •of the votes cast therein at the election of 1890, but the evidence, does show, if that is material, that the “ people’s: independent” party and the “independent” party were one and the same. This court will also take judicial notice •of the fact that the republican party and the people’s in-; dependent party at the general election of 1890 each- cast more than one per centum of the votes polled. The defendant was entitled to have his name appear on the ballots as candidate of each party nominating him. (State, ex rel. Christy, v. Stein, 35 Neb., 848; Fisher v. Dudley, 22 Atl. Rep. [Md.], 2; Wigmore’s Australian Ballot Sys., 190; Behrensmeyer v. Kreitz, 26 N. E. Rep, [Ill.], 704; State, ex rel. Hawes, v. Pierce, 35 Wis., 93; State, ex rel. Palmer, v. Stein, 35 Neb., 866,) And all such ballots should; be counted, unless it appears the candidate was yoted formore than once by the same elector. : », •
By section 136, chapter 26, Compiled Statutes, it is- provided that all certificates of nomination which are in,ap? parent conformity with the previsions of the election; layr. shall be deemed valid, unless objection is made thereto ip.
The relator and defendant had a right to be voted for for an office and have the votes counted, even if the clerk had left off the ballot entirely the names of the political parties of which they were members and by which they were nominated. The statute requiring that the ballot shall contain the name of the party or principle which the candidate represents is directory and is intended as a help
“Innocent irregularities of election officers, which are free of fraud and have not prevented the free and fair expression of the popular choice, will not vitiate the result of an election unless the legislature has so expressly declared.” (Bowers v. Smith, 17 S. W. Rep. [Mo.], 761.)
If the relator was dissatisfied with the political or other description of the defendant on the ballots as printed, he should have proceeded under section 141 of the election law, to have had the ballots corrected. Not having done this, his objection to these ballots, at this time, comes too late. (Bowers v. Smith, 17 S. W. Rep. [Mo.], 761; Id., 20 S. W. Rep. [Mo.], 101; Allen v. Glynn, 29 Pac. Rep. [Col.], 670.)
In the last case the supreme court of Colorado, through Chief Justice Hayt, say: “ By other sections (of the Australian ballot law) it is provided that the name of every candidate whose name has been properly .certified shall be on one and the same ballot; that sample ballots shall be in the county clerk’s possession seven days before election, subject to public inspection, and official ballots four days before election. It is also provided for posting of .sample ballots, etc. An examination of these sections will show that the legislature has made ample provision for the correction of ballots prior to the election; and it would
The application of the.relator is denied and the suit dismissed at his cost, including fees of the referee herein, -tayedi at $100.
Dismissed. .;