59 Neb. 702 | Neb. | 1900
At the general election held, in November, 1898, there was submitted to the electors of Knox county the proposition to divide said county and erect the county of Dewey. The vote was taken as ordered, and the result was canvassed by the various election boards, who made return thereof to the county clerk of Knox county. The respondent, as county clerk, together with two electors of the county, canvassed the returns, and entered the re-
Section 10, article 1, chapter 18, Compiled Statutes, makes provision for the submission to a vote of the people the proposition to form a new county out of one or more of the existing counties. Section 11 of the same article and chapter provides: “If it shall appear that a majority of all the votes cast at any such election, in the county interested, is in favor of the erection of such new county or counties, the county clerk of said county shall certify the same to the secretary of state, stating in such certificate the name, territorial contents, and boundaries of such new county or counties; whereupon the secretary of state shall notify the governor of the result of the election, whose duty it shall be [to] order an election of county officers for such new county or counties, at such time as he shall designate, and he may, when necessary, fix the place of holding election, notice of which shall be given in such manner as the governor shall direct,” etc.
It will be observed that the legislation just quoted
First. That said section 11, heretofore quoted, is inimical to the provisions of section 2, article 10, of the state constitution, and is therefore void.
Second. Though said section 11 be declared valid, it must be interpreted in harmony with the constitution, and when so construed, the question of county division received the requisite affirmative vote, and was adopted.
Third. That if said section 11 be sustained, then, under the adjudications of this court, the proposition to erect Dewey county was carried.
Should any one of these propositions be determined in favor of the relator, the judgment of the district court must be reversed, and a peremptory writ of mandamus be issued. But if all of them are not well taken, the writ must be denied.
The questions will be taken up in the order in which we have stated them.
The constitutional provision invoked by the relator (sec. 2, art. 10) is in the language following: “No county shall be divided, or have any part stricken therefrom, without first submitting the question to a vote of the people of the county, nor unless a majority of all the legal voters of the county voting on the question shall vote for the same.” This section of the fundamental law is a restriction, or limitation, upon the power to divide a county. Such a division can only be made by the submission of the proposition therefor to the electors of the county interested, and not then, unless the ques
It is strenuously argued that the constitution has relegated the subject of county division to- those voting thereon, and as the framers of the fundamental law have designated a specific and particular class of electors who shall decide the question, the legislature is thereby rendered powerless to leave the decision of the proposition “to the general vote, to all who vote on any proposition whatever, although they fail to vote for or against county division.” Doubtless, it is not within the constitutional power of the legislature to enact a law authorizing the division of a county, when the proposition has received an affirmative vote equal to a majority of those voting for governor or any other office or proposition, since the entire vote for candidates for governor or any other office or proposition voted for at the election at which the question of county division is submitted might be less than a majority of the legal voters of the country voting-on the question of the erection of a new county, and county division is not permissible where the question has been sanctioned by a less vote than that prescribed by the constitution. By section 11, article 1, ..chapter 18, Com
The second argument of relator is that said section 11, article 1, chapter 18, Compiled Statutes, must be construed to harmonize with the fundamental law; and that the words “such election,” as employed in said section, refer to and mean the election on the proposition of county division and none other. In other words, that the section of statute under consideration only requires the vote of a majority of those electors who vote on the question of county.division to carry the same. Whatever may be the views of the writer or the other members of this court as to the proper construction which should be placed upon the words “such election,” in the light of the past adjudications in this state, the question must be regarded set at rest, and foreclosed against the relator by State v. Babcock, 17 Nebr., 188; State v. Bechel, 22 Nebr., 158; State v. Anderson, 26 Nebr., 517; State v. Benton, 29 Nebr., 460; Douglas County v. Keller, 43 Nebr., 635; Stenberg v. State, 50 Nebr., 130; Bryan v. City of Lincoln, 50 Nebr., 620; Tecumseh Nat. Bank v. Saunders, 51 Nebr., 801. Applying the principle of those cases to the statute with which we have been dealing, there is no escaping the conclusion that the words “such election” do not mean merely the vote cast for and against the proposition of county division, but rather the proposition to erect a new county must receive the majority of the legal votes cast at the general election at which the same was submitted, for the filling of an office and on any proposition.
AFFIRMED.