State ex rel. Oyler v. Supervisors

Nebraska Supreme Court

State ex rel. Oyler v. Supervisors

25 Neb. 33

DecidedJuly 15, 1888

StatusPublished

This text of 25 Neb. 33 (State ex rel. Oyler v. Supervisors) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Oyler v. Supervisors, 25 Neb. 33 (Neb. 1888).

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Opinion

Reese, Ci-i. J.

This is an application to this court, in the exercise of its original jurisdiction, for a peremptory writ of mandamus to compel the defendants, who are the supervisors of Harlan county, to admit the relator as a member of their board, he claiming to have been elected as such member by the electors of the city of Alma, which is sit-mated within the boundaries of what has heretofore been, and perhaps now is, Alma township. It appears by the ¿Headings and ¿proofs submitted that the election at which ithe relator claims to have been selected as the member •from the city of Alma, was in Alma township, that is, ■■that the electors of the whole township voted at the election. By the returns it appears that Joseph McCreery received two hundred and ten votes, and the relator one hundred and thirty-two. McCreery received the certificate of election, and was admitted as one of the board. There is nothing in the record anywhere to show that the one hundred and thirty-two votes cast for relator were the votes of the electors of Alma city alone, but, so far as the returns go, it appears that McCreery and relator were opposing candidates. It is insisted that the city of Alma is entitled to a member of the board, as a town, under the provisions of the law providing for township organization. Comp. Stat., Art. IV., Chap. 18. Whether this be true or not, it is quite clear that the electors of the city did not see fit to act independently in the election of members of the board of supervisors. It does not appear that relator was duly elected such supervisor from that city.

It is provided by section 645 of the code that, although a writ of mandamus may issue to compel action, yet it will not issue to control judicial discretion.

The board of commissioners decided that relator was not entitled to a seat in their body, as the representative of [35]*35the city of Alma, he not having been elected in that capacity. Their decision was correct. The writ must therefore be denied.

Writ denied.

The other judges concur.

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Reese, Ci-i. J.

This is an application to this court, in the exercise of its original jurisdiction, for a peremptory writ of mandamus to compel the defendants, who are the supervisors of Harlan county, to admit the relator as a member of their board, he claiming to have been elected as such member by the electors of the city of Alma, which is sit-mated within the boundaries of what has heretofore been, and perhaps now is, Alma township. It appears by the ¿Headings and ¿proofs submitted that the election at which ithe relator claims to have been selected as the member •from the city of Alma, was in Alma township, that is, ■■that the electors of the whole township voted at the election. By the returns it appears that Joseph McCreery received two hundred and ten votes, and the relator one hundred and thirty-two. McCreery received the certificate of election, and was admitted as one of the board. There is nothing in the record anywhere to show that the one hundred and thirty-two votes cast for relator were the votes of the electors of Alma city alone, but, so far as the returns go, it appears that McCreery and relator were opposing candidates. It is insisted that the city of Alma is entitled to a member of the board, as a town, under the provisions of the law providing for township organization. Comp. Stat., Art. IV., Chap. 18. Whether this be true or not, it is quite clear that the electors of the city did not see fit to act independently in the election of members of the board of supervisors. It does not appear that relator was duly elected such supervisor from that city.

It is provided by section 645 of the code that, although a writ of mandamus may issue to compel action, yet it will not issue to control judicial discretion.

The board of commissioners decided that relator was not entitled to a seat in their body, as the representative of [35]*35the city of Alma, he not having been elected in that capacity. Their decision was correct. The writ must therefore be denied.

Writ denied.

The other judges concur.

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Bluebook (online)

25 Neb. 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oyler-v-supervisors-neb-1888.