47 Neb. 417 | Neb. | 1896
This case has twice' received the attention of this court, vide State v. Roper, 46 Neb., 724, and under same title, 46 Neb., 730. By the action of this court above last referred to there were left to> contest the questions presented only such defendants as it is claimed were bound by reason of being county officers, to remove their respective
At Indianola.......................... 867
At McCook............................ 1,339
Ballots not reported or accounted for..... 25
Ballots rejected........................ 1
Blank ballots.......................... 3
Ballots written for McCook and not counted........'..................... 2
Total vote of precinct............. 2,237
. In the former opinion (46 Neb., 724) it was said that the question presented was whether or not the petition, or application, which disclosed the above condition of the return, no other ground of criticism of the petition existing, stated a cause
In Gillespie v. Palmer, 20 Wis., 544, there was under consideration a section of the constitution which contained a proviso which made its adoption dependent upon an approval by a majority
In State v. Green, 37 O. St., 227, the following ■definition of the word “vote,” given by Davies, J., in People v. Pease, 27 N. Y., 45, was approved: '“A vote is but the expression of the will of a voter; and whether the formula to give expression to such will be a ballot or viva voce, the result is the same; either is a vote.” Both parties to this litigation cite the decisions- of the supreme court of Missouri, and upon behalf of the plaintiff there is velied upon the County of Cass v. Johnston, 95 U. S., 360, based on a Missouri case. These are of little practical value in this state, for the rule of construction therein is radically different from that adopted by this court, as is illustrated by the following quotation from State v. Francis, 95 Mo., 44: "When by law a vote is required or permitted to he taken, and a majority of the legal voters is ■mentioned in such law as being necessary to carry the proposed measure, such majority must be a majority of all the legal voters entitled to vote at such election and not a mere majority of those voting thereat.”
In Everett v. Smith, 22 Minn., 53, the requirement of a “majority of such electors” was held to xefer to those who voted, and in Sanford v. Prentice, 28 Wis., 358, the same construction was given the words “a majority of the legal voters of the said district.”
In Holcomb v. Davis, 56 Ill., 413, there was under consideration a herd láw which, by its own terms,
In People v. Wiant, 48 Ill., 263, it was said that if the return of the various poll books of the county showed a larger number of votes cast for circuit judge, or other officer, than were cast for and' against the removal of the county seat, then that should be taken as the number of voters of the-county.
In County Seat of Linn County, 15 Kan., 500, it was said: “It is a general rule, in respect to elections, that where the number of the electoral body is fixed, as in case of the directors or members of a corporation, or a legislature, there a majority means a majority of the whole body; but where the electoral body is indefinite in numbers, as. in ordinary popular elections, there a majority means a majority of the votes actually cast.”
With the exception of the case last above cited,, those of other states, except Missouri, simply adhere to the rule adopted in this state. In the County Seat of Linn County there is, however,, stated the distinction between corporate or political bodies having a fixed membership and those wherein the membership is indeterminate with respect to the data from which a majority must be estimated. Where there occurs at the same time a general and a special election, there is given an exact basis from which to ascertain the number of electors, and that is the greatest number of votes cast for any candidate or proposition. Where the election is special and confined to a single proposition, there is no occasion
As to the effect to be given to the disclosed fact that others than those counted were present, Oldknow v. Wainwright, 1 Wm. Bl. [Eng.], 229, is somewhat instructive, as will be seen by the following-copy of that case as reported: “On a special verdict, the question was, whether Segrave, the town clerk of Nottingham, was legally elected. There were twenty-one electors present; nine of whom voted for Segrave; eleven protested against him, without voting for any one else, and one other said that die suspended doing anything.7 It was argued by Mr. Caldecot, that this was such a negative upon Segrave, that his election was invalid. Serjeant Hewit, contra, in Easter Term last; and now per tot. Cur. The election is clearly good. The eleven protestant dissenters, having-voted for nobody, could not put a negative upon the only man put in nomination, and Wilmot, J., cited K. and Withers, H., 8 Geo., 2; K. and Boscawen, P., 13 Anne; and Taylor and the Mayor of Bath, temp. Lee, C. J., to shew that, Avhere a majority do nothing but merely dissent, they lose their votes.77 The proposition in support of which the citations were made by Wilmot, J., was stated and enforced in State v. Green, supra, in Attorney General v. Shepard, 62 N. H., 383, and in Rushville Gas Co. v. City of Rushville, 121 Ind., 206.
In Walker v. Oswald, 68 Md., 146, it was held that when an election is held at which a subject-matter is to be determined by a majority of the voters entitled to cast ballots thereat, those absenting themselves, and those who, being present, abstain from voting, are considered as acquies
In People v. Town of Sausalito, 39 Pac. Rep. [Cal.], 937, the question was whether or not there was, in fact, a majority of the votes cast “for incorporation.” There were seven official ballots without a mark placed on either of them by any one to indicate his wish in any particular. These were held to be no votes, and discussing the effect to be given them, the court said they were not to be counted or considered for any purpose.
The respondents specially rely upon State v. Walsh, 62 Conn., 260. In this opinion were quoted the following provisions of the statute applicable to the election under consideration: “The presiding officer shall, with the certificate upon the result of the electors’ meeting, which he is required to send by mail to the secretary of the state, send to the secretary his certificate of the whole number of names on the registry lists, the whole number checked as having voted at such elections, the whole number of names not checked, the number of ballots found in each box, namely, ‘general and representative,’ and the number of ballots in each box not counted as in the wrong box, and the number not counted for being double, and the number rejected for other causes, which other causes shall be stated specifically in the certificate.” It appears from the statutory returns that eleven ballots in one town and one ballot in each of two other towns had been .rejected, but the reason of such rejection neither appeared in returns of the presiding officers nor by the evidence offered in court. In respect to the contention that the rejected votes should not be con
Writ allowed.