85 Neb. 494 | Neb. | 1909
Frank H. Barnes, who alleges in his petition that he is a citizen, resident and taxpayer of the city of Lincoln, commenced this action in the district court for Lancaster county to contest an election which was held in the city of Lincoln on the 7th day of May, 1907, at which election was submitted to the vote of the people the proposition of empowering the mayor and city council to compel the Chicago, Rock Island & Pacific Railway Company to construct and maintain viaducts over its railway tracks where they cross P and J streets. The petition set forth sufficient grounds for contesting the election: The defendant answered, in substance, that the plaintiff was without authority of law to commence or prosecute an action to contest the election in question; that the plaintiff did not
It was conceded upon the argument that, in order to re-Arerse the judgment of the district court, we must overrule Thomas v. Franklin, 42 Neb. 310; Sebering v. Bastedo, 48 Neb. 358; Dodson v. Bowlby, 78 Neb. 190.
Thomas v. Franklin, supra, was a case where it was sought to contest a county seat election. The action was brought under the provisions of chapter 26, Comp. St. 1893, Avhich is the statute upon Avliich the present action is based, and it was there held that the contestant could not maintain the action. In the body of the opinion we find the following: “Can the appellant maintain this proceeding? If he can, it must be because the statute authorizes any elector of a county to contest the result of an election held for the purpose of relocating the county seat thereof. The statutory provisions for contesting elections are found in chapter 26, Comp. St. 1893. Section 64 of this chapter provides: ‘The election of any person to any public office, the location or relocation of a county seat or any proposition submitted to the vote of the people may be contested.’ * * * Section 70 of said chapter is as follows: ‘The district courts of the respective counties shall hear and determine contests of the election of county judge, and in regard to the removal of county seats, and in regard to any other subject which may by laAV be submitted to the vote of the people of the county,
Sebering v. Bastedo, supra, was a case where another attempt was made to contest the validity of a county seat election in Boyd'county Avhereby Butte city, upon the’face, of the returns, as against Spencer, was declared by the canvassing board to have been successful. Upon authority of Thomas v. Franklin, supra, the proceeding was dismissed, thus affirming and following that case.
In Dodson v. Bowlby, supra, quoting from Thomas v. Franklin, 42 Neb. 310, it was said: “When one elector of a county, in his own name and on his own behalf, seeks to defeat the presumed will of the people of his
Whatever might have been our conclusion had this case been' one, of first impression, the law denying the right of the plaintiff to maintain this action is -so well settled that we decline to now adopt a different rule.
Eor the foregoing reasons, we are constrained to hold that the judgment of the district court was right, and it is therefore
Affirmed.