46 Neb. 730 | Neb. | 1896
This is the same case which was before the court some months ago and in which an opinion was filed denying the writ prayed for. (State v. Roper, 46 Neb., 724.) The decision was based upon the ground that the application did
In an early case in this court (Anderson v. Colson, 1 Neb., 172) there was an application to compel a county treasurer , to pay over to the relator, who claimed to have been elected school district treasurer, moneys to which the school board was entitled. The answer alleged facts in contravention of the legality of the relator’s election. The case was heard on these pleadings. This court held that the pleadings disclosed that there was a.dispute as to the right to the office; that such a question could not be tried on an application for a mandamus, and, therefore, dismissed the petition. State v. Thatch, 5 Neb., 94, was an application similar to this. The answer alleged in general terms and upon information and belief that the election was fraudulent and illegal. The court held that the answer, by failing to state the facts on which the charge of fraud was based, was insufficient, and therefore awarded the writ, adding obiter, that if it were made to appear clearly that a sufficient number of illegal votes had been cast in favor of the successful town to give it a majority, this would be sufficient cause for the court to refuse its aid. In view of the decision in Anderson v. Colson, swpra, we take it, that what was in the mind of the court was .that if a sufficient an
In People v. Hamilton County, 3 Neb., 244, the application was similar to that before us, and the writ was denied because no sufficient notice had been given of the election. The effect of the decision is that the requirement of a notice of elections of this character is mandatory, and without such a notice the election is absolutely void. The question then being not whether the election had been fairly and legally conducted, but whether there had been any election. This case is not in point. Hunter v. State, 14 Neb., 506, was a similar application. It does not appear what the answer was. The court reaffirmed State v. Thatch, supra, as to the requirements of such an answer, and then decided that the introduction in evidence of a petition for an injunction to restrain the officers from removing the county seat proved only the fact of the pendency of such an action, and did not prove the facts alleged in the petition for the injunction. Beyond this, expressions in the opinion are entirely obiter. Scott v. McGuire, 15 Neb., 303, was the injunction case referred to in Hunter 'v. State. The court held that an injunction would not be granted to restrain the removal of a county seat on allegations attacking the legality of the conduct of the election.
It has a number of times been held that a canvassing board has no authority to go behind the returns ; that its duty is to canvass the vote as returned to it, and that, therefore, mandamus will lie to compel a canvass in accordance with the face of the returns. (Hagge v. State, 10 Neb., 51; State v. Stearns, 11 Neb., 104; State v. Peacock, 15 Neb., 442; State v. Wilson, 24 Neb., 139; State v. McFadden, 46 Neb., 668.) State v. Jaynes, 19 Neb., 161, was an application for a mandamus to compel the respond
From a review of the cases we therefore find that the court has steadfastly refused on application for a mandamus to inquire into the regularity of an election and into the correctness of the action of the election officers. It has never tried, but has always refused to try, issues of fraud and illegal voting. In the earlier cases it held that presenting such an issue was a sufficient reason for refusing the writ, without trying the issues, until the validity of the election should be determined in a proper action. Later, the ground was taken that a canvassing board must canvass the returns and declare the result according to the face of the returns; and this led logically to the conclusion reached in all cases since 1886, that an answer alleging fraud and illegality in the manner of conducting the election sets up no defense, thus in effect overruling the earlier cases, not so far as they held that such issues would not be tried in the mandamus case, but in so far as they held that presenting such issues was a defense to the action. We conceive that the later, and undoubtedly the correct position is that a canvassing board must proceed according to the face of the returns, and that the court will give its aid through a writ of mandamus to the person entitled under such a canvass, either to secure his certificate or to
It is argued that in Thomas v. Franklin, 42 Neb., 310,. this court held that no jurisdiction was obtained of contest proceedings in regard to this very election; that no contest being permissible, the respondents are without a remedy unless they can obtain it in this action, and that the usual remedy not being applicable, the merits of the election can be inquired into in this case. Assuming the premises to-be correct, we would not at this time commit ourselves to-the correctness of the conclusion. Some courts of very high authority have held that in such a case inquiry may be made into the issues presented by these answers. On the contrary, there are many cases emanating from courts to whose decisions we owe equal deference, to the effect that a proceeding which is in its nature, whatever may be its form, the contest of an election, is one political or administrative in its character, and not the subject of judicial cognizance unless made so by express statute; that, therefore, where there is no statute authorizing a judicial inquiry into the validity of an election, no such inquiry can be made in any proceeding, and this view is not without some inferential support from this court. (Miller v. Wheeler, 33 Neb., 765; State v. Oleson, 15 Neb., 247; State v. Saline County, 18 Neb., 422.) But the question thus presented it is not necessary to here decide. The statutes expressly provide (Compiled Statutes, ch. 26, sec. 64) that an election for the location or relocation of a county seat may be contested, and we did not in Thomas v. Franklin decide either that this statute was unconstitutional or that it was inoperative for failure to provide a method of contest.' ■ What we there decided was that an elector, as such, in his own individual name and behalf could not maintain.
The motion to strike was filed July 19,1895. On July 22 the relator filed what is styled an answer to the petition of the intervenors. It is now claimed that having answered, the motion cannot be considered. On June 22 the court had made an order requiring the relator to answer the petition of the intervenors within thirty days. The court, after making this order, almost immediately adjourned sine-die. The answer, protesting that the petitions are irrelevant, is expressly made because of the court’s order. Ordinarily, filing an answer to a petition waives any defect which can be raised only by motion, but in view of the-fact that the court here in terms required such an answer, of the further fact that a consideration of the motion avoids the unnecessary delay and expense which would be-caused by taking a large volume of testimony on the irrelevant issues, and still further, because the pleading filed by the relator was an answer to the petition of intervention,, and not a reply to the answers of the intervenors which the motion attacks, we have deemed a decision upon the-merits of the motion proper. It follows from what has-been said that the motion'is sustained.
Motion sustained.