State ex rel. Anderson v. Newman

Reese, Ch. J. This was an application for a peremptory writ of mandamus to compel the county commissioners of Cheyenne county to call an election for the purpose of submitting to the voters of said county the question of the erection of a new county, to be called Potter county. A demurrer to the application was presented and argued at the January term of this court. The demurrer was overruled. No-further reference need be made to it than to cite the- report of the case, winch is found in State, ex rel. Anderson, v. Newman, 24 Neb., 40. Upon the demurrer being overruled, defendants acted upon the petition which had been submitted, and found that it had not been signed by the requisite number of electors of the territory described as the proposed new county. It appears by the records on file in the case, and admissions of the counsel during the argument, that four elections were called, upon the submission of the question of the erection of Kimball, Banner, Scott’s Bluff, and Deuel counties, and at the November election the county of Cheyenne was subdivided into five counties. It also appears that the boundaries of the proposed county of Potter conflicted with the boundaries of what are now Kimball and Cheyenne counties. The county board having acted upon the petition of relator, it follows that the writ cannot issue as prayed, and the only question now before us is as to the taxation of costs. By the decision upon the demurrer, it became apparent to the county board that it was their duty to act upon the petition presented. Until they did so act, they were in default and subject to the issuance of the writ. The relator is therefore entitled to recover his costs made prior to their action, which was on the 9th day of May, 1888, and for this he will have judgment. All costs made since that date will be taxed [37] to him, and for which defendants will have judgment. The writ is denied. Judgment accordingly. The other judges concur.