59 Neb. 128 | Neb. | 1899
At the general election held in November, 1895, the contestant was the republican candidate for sheriff of Hayes county, and the contestee the democratic candidate for said office, and the two “were the only candidates
After issues had been joined in the district-court the contestee - made application to the judge .thereof at chambers -for leave to file an amended answer, and the ■following order was made: “I, the district judge aforesaid, considering myself disqualified from hearing and trying said case on its merits, and having heretofore made arrangements to have said case tried by the Hon. H. M. Grimes, district judge within and for the thirteenth judicial district of said state, do hereby refer the said application to the said Hon. H. M. Grimes, district judge aforesaid.” The contestee subsequently made an application to the district court, Judge Grimes presiding, to be allowed to amend his answer, which was denied. Complaint is made of the order which we have quoted, also of the subsequent order of the court. These were of matters of procedure of occurrence at or before the trial, and are not reviewable on appeal. See National Life Ins. Co. v. Martin, 57 Nebr., 350; Ainsworth v. Taylor, 53 Nebr., 484; Alling v. Nelson, 55 Nebr., 161; Troop v. Horbach, 57 Nebr., 644; Te Poel v. Shutt, 57 Nebr., 592; Estep v. Schlesinger, 58 Nebr., 62. The foregoing is also applicable to the review of rulings on objections to evidence during the trial. See Village of Syracuse v. Mapes, 55 Nebr., 738; Alling v. Nelson, supra. The docket entry in the county court contained the following:
“January 13,1896. The hour having arrived for which the case was set for trial, the parties appeared. The following witnesses were supoenaed, sworn, and testified on*131 behalf of plaintiff: * * * After hearing the evidence in the case, the cause was submitted without argument. Cause continued by the court to the 18th day of January, 1896, at 1 o’clock P. M. ■
“January 18, 1896, parties appeared. The court finds the issues in favor of Charles Bailey, the incumbent, and that he was lawfully elected to the office of sheriff of Hayes county, Nebraska. It is therefore considered by the court that the said election be in all things confirmed and the complaint be dismissed, and the said William L. Orr, the contestant, pay the costs of suit.”
It is argued that this shows a submission of the cause on the 13th of January and an adjournment for such a length of time as caused the then trial court to lose jurisdiction, and that court had no further jurisdiction, and the appellate court acquired none by the appeal. The remedy of contest pursued in this method is a statutoi*y one, and after prescribing that the proper district courts shall hear and determine “contests of the election of county judge” (Compiled Statutes, ch. 26, sec. 70), it is further directed: “The county courts shall hear and determine contest of all other county, township, and precinct officers * * * within the county.” See Compiled Statutes, ch. 26, sec. 71. Our attention is called to section 2, chapter 20, Compiled Statutes, wherein it is stated: “The provisions of the Code of Civil Procedure, relative to justices of the peace, shall, where no specified provision is made by this subdivision, apply to the proceedings in all civil actions prosecuted before said county court.” Also to section 1002 of the Code of Civil Procedure, in which appears the following: “Upon a verdict, the justice must immediately render judgment accordingly. When the trial is by the justice, judgment must be entered immediately after the close of the trial, if the defendant has been arrested or his property attached; in other cases it must be entered either at the close of the trial, or if the justice then desire further time to consider, on or by the fourth day thereafter, both days inclusive.”
In section 7, chapter 20, Compiled Statutes, the chapter in reference to “Courts — Probate (County),” it is provided : “It shall be the duty of the probate judge, in each county, to hold a regular term of the probate court at his office, at the county seat, commencing at nine o’clock A. M., on the first Monday of each calendar month, for
In the district court special findings were made, and in regard to the votes in Logan precinct it was stated and determined: “That in Logan precinct there were cast 41 votes, as shown by the abstract and by the court, and of which 41 votes the defendant Charles Bailey received 31 and the plaintiff William L. Orr received 10. The court further finds that H. Y. Shattuch, John Johnson, and Christ Eichenberge were the judges, and E. W. Crossby and John Pane were the clerks at this election in said Logan precinct; that each of the 41 ballots cast in said precinct at said election was indorsed on the back with the name '-Christ Eichenberge,’ written in ink, and that said name was all and the only indorsement on said ballots; that one of said ballots, 'Exhibit 5,’ had the X to the left of the name instead of to the right of the name of Orr. The court further finds that all the ballots cast and counted in Logan precinct, 41 in number, are void and not entitled to be counted, for the reason that none of said ballots are indorsed with names of two of the judges of election as required by law. To which finding defend
Sec. 22, art. 1: “All elections shall be free; and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise.
Sec. 1, art. 7: “Every male person of the age of twenty-one years or upwards belonging to either of the following classes, who shall have resided in the state six months, and in the county, precinct, or ward for the term provided. by law, shall be an elector: First, Citizens of the United States. Second, Persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States, on the subject of naturalization, at least thirty days prior to an election.”
The arguments are that to carry out the intention of the legislature, in the enactment of the ballot law, as disclosed by the inspection of the whole act and blending all portions, some particular passages, and the one herein involved, may or must be construed to state that which by its terms it does not, or if it is mandatory, then it may as well have been omitted as violative of the constitution. “The Australian ballot law” or system has been adopted by almost all of the states of the United States. It has been at all times, and is, popular with those whom it affects — the voters. It has received and has general approval.
It has been stated: “The main features of these statutes consist in the provision for the use of an official ballot and in the provisions for secrecy as to votes, the object being, not only to allow a man to vote without any other person knowing for whom he votes, but to compel liim to vote secretly, and thus prevent bribery, coercion, and other evils.” See 10 Am. & Eng. Ency. Law [2d ed.], 585. “By thus tending to eradicate corruption and by giving effect to each man’s innermost belief, it secures to the
In a consideration of provisions of the Australian ballot law, this court, in an opinion written by Post, J., stated: “In the construction of statutes of this character it is important to keep in mind two recognized principles: First — That the legislative will is the supreme law and the legislature may prescribe the forms to be observed in the conducting of elections and provide that such method shall be exclusive of all others. Second — Since the first consideration of the state is to give effect to the expressed will of the majority, it is directly interested in having each voter cast a ballot in accordance with the dictates of Ms individual judgment. Becognizing the principle first stated, the courts have uniformly held that when the statute expressly or by fair implication declares any act to be essential to a valid election, or that an act shall be performed in a given manner and no
If the foregoing rules are given effect, then an examination of the ballot law as a whole, and in connection therewith the portion herein in question, with the purposé, in view in the light of the said doctrines, to ascertain the true intent or meaning, it must lead to a conclusion that it is mandatory. Its language is clear, free from ambiguity, and the meaning unmistakable. It declares that the requirement of the signatures of the judges is essential to the validity of the election and an
In support of the contention that the voter may depend in the reception and use of his ballot upon the efficiency of the election officers, and that they will mark the ballot as required by law, and if not, he may not or can not be disfranchised by reason of an act, or rather a failure to act, not his own, and in regard to which he was •entirely faultless, the counsel have cited a number of decisions which we have examined; also, the opinion in case of Meyer v. Van De Vanter, 41 Pac. Rep. [Wash.], 60, in which it was decided that a provision in regard to the indorsement of ballots very similar to the one now under consideration was in conflict with a section of the constitution. This decision last mentioned proceeds upon the ground that the law was mandatory; but the legislature could not pass an act by the effect of which the individual elector could be deprived of the right to vote by reason of no fault or neglect of his own, but that of those of other persons. In the opinion nothing appears to indi
One of the important objects of the Australian ballot law was and is to provide purity and honesty in elections, to prevent frauds; and the presumptions that the signatures of two of the judges of election shall be placed on the back of each ballot before it is delivered to a voter and it shall by the voter be folded so as to disclose these signatures when he presents it for deposit in the ballot box, and it may not be so deposited unless they do appear or are in fact on the back of the ballot, and, if deposited without such indorsement, the ballot shall be void and not counted, are but parts of the general scheme, and it will be noticed that the voter is called upon to aid. He
In regard to the conduct of the election in Frenchman precinct, the court determined as follows: “The court further finds that in Frenchman precinct said election was held in a sod schoolhouse; that no regular booth or booths of any kind had been furnished the precinct; that to take the place of a booth, or rather to serve as a booth, an overcoat was hung up to the rafter or one of the joists of the schoolhouse in or at one corner; that said overcoat was spread out and the bottom hung from six to fifteen inches above the top of the desk; that the school desk below and under said overcoat was for the purpose and used by the voters to mark their ballots upon; that there was no railing about the booth or about the place occupied by the election officers; that all of the voters did not go behind the booth to make out their ballots, but made them out sitting at school desks in the body of the room; that at least two of the tickets were filled out by one of the judges of election for two electors who claimed to be unable to read or write; that neither of such voters were required to make such declaration of such disability un
Affirmed.