56 Neb. 301 | Neb. | 1898
At the municipal election held in April, 1895, at Holdrege, a city of the second cías®, J. Theodore Miller and L. J. Titus were the candidate® for the mayor. When the votes were canvassed it was found that each candidate had received 215 votes, and the council declared that there wra® a tie and that neither candidate had been elected. Thereupon Dean, the then incumbent, qualified as an officer holding over his term until his successor should be chosen and qualified. Miller took the oath of office and instituted this proceeding in quo warranto against Dean. The- substantive issue was whether Miller
Of the questions discussed that naturally first presenting itself for decision is whether this court will review the proceedings of the district court at this time, it appearing that the term of office in controversy has expired. It is insisted that the ease therefore falls within the rule followed by many courts, that when no. effective judgment can be rendered except for costs a case will be denied further consideration. This was not a proceeding by the public prosecutor to oust an usurper, but -one by a rival claimant to the office, a judgment in which would be necessary to adjudicate the title to the office as between the parties. We must assume that the office in dispute is a lucrative office. While the statute does not fix the salary of mayor, it directs that the mayor and other officers named shall receive salaries to be fixed by ordinance, and itself fixes a maximum. (Compiled Statutes, eh. 14, art. 1. sec. 7.) An adjudication of the title, in a proper proceeding, is essential to establish the rights of the parties to the emoluments.. This is a property right, and cannot be denied because the delay occasioned by the crowded condition of our docket has rendered the active part of the judgment ineffective. (Hunter v. Chandler, 45 Mo. 452.)
There was sufficient evidence to show that at least one, perhaps three, of those voting at the election had abandoned their residence in Holdrege prior thereto, but the only evidence that any of these votes was cast for Titus consists in the testimony of third persons as to declarations of these voters as to the nature of their votes. Some of these declarations Avere made prior to the casting
The judicial cases have more frequently turned on the admissibility of evidence of declarations regarding the qualifications of the voters than the nature of their votes;
We conclude that in such cases as the'present the established rules of evidence- must be applied, and that these require the rejection of declarations of voters as to how they voted, as being hearsay, unless they be strictly a. part of the res gestee or fall within some other recognized exception to the rule excluding hearsay. When we thus disregard the evidence of declarations in this case, there is nothing left to show that any illegal votes were cast for Titus. The other phases of the case need not be considered. The election, in the aspect most favorable to Miller, resulted in a tie. No steps to dissolve the tie were taken, Dean’s successor had not been chosen, and he was the rightful incumbent.
Reversed and remanded.