97 Neb. 789 | Neb. | 1915
At tbe primary election in 1914 tbe relator and Prank Bowers and William Johnson were nominated as candidates for tbe office of county commissioner for Howard county. Thereafter tbe relator began this action in tbe district" court against tbe respondent, who is county cierk of that county, to restrain him from putting tbe names of Bowers and Johnson upon tbe official ballot as candidates for that office. Tbe district court granted a preliminary restraining order and afterwards, upon final bearing, dissolved tbe restraining order and dismissed tbe proceedings, and tbe relator has appealed.
Tbe relator was elected to tbe office of county commissioner at tbe general election in the fall of 1911, and contends that bis term was for four years and would not expire until January, 1916, and therefore there was no vacancy in that office to be filled at tbe election of 1914.
1. It is objected that injunction is not an appropriate remedy in such case. Contest of election provided by statute or, when that remedy is not applicable, tbe writ of quo warranto is tbe proper method of trying tbe right to public office. If tbe name of one who has been regularly nominated to an office is kept from tbe ballot by a restraining order or a temporary Injunction, be may be prevented from being a candidate at tbe election, although it is finally determined in tbe same case that be was entitled to a. place on tbe ballot. Thus be may, by a preliminary order, without any bearing, be deprived of a right that can never be restored to him. If injunction is the proper remedy,
2. It was suggested in Best v. Moorhead, supra, that “the statutes governing this question are conflicting and inconsistent and cannot be literally enforced.” The legislature of 1879 enacted two statutes, one entitled “An act to provide a general election law, the procedure relative to contested elections, and the filling of vacancies in office” (laws 1879, p. 240), and the other entitled “Concerning counties and county officers” (laws 1879, p. 353). The act “Concerning counties and county officers” was a comprehensive statute of 154 sections. It provided that the
The general election law of 1879 (laws 1879, p. 210) named the officers to be elected, state, district, county, township and precinct, and generally stated incidentally the term of office. Section 7, after providing for the election of various officers of counties not under township organization, contained these words: “And one county commissioner shall be elected annually who shall serve three-years.” This was all that was said in the act in regard to county commissioners and their terms of office. The act concerning counties and county offices created the office of county commissioner, and provided at large the duties of that office and the time and manner of the election. If there is a conflict between the general election law and the law concerning counties and county officers as to the
The relator’s term of office was four years, beginning in January, 1912. Without determining whether the process of injunction may be used under any circumstances to control the action of the county clerk in making up the official ballot, we cannot find that there was any abuse •of discretion in dismissing the action under the peculiar circumstances in this case. ■
Affirmed.