103 Neb. 603 | Neb. | 1919
This is an original action in quo warranto, brought in this court to test the right to the office of county judge of Logan county, of the respondent, Franklin R. Hogeboom. The relator and claimant to the office is George H. Hughes.
At the primary election on August 21, 1918, the name of the respondent was printed on the primary ballot as a candidate for the nomination of county judge in and for Logan county.
One of the issues to be determined herein is: Was the relator, George H. Hughes, legally nominated at the primary? The second question is: Should the ballots cast for relator at the general election be considered as legally electing him ? It is obvious in the general election laws of this state that nonpartisan law predominates and must be taken into consideration in the election laws of our state, and that these laws must be so interpreted as to provide that a voter shall have his free and untrammeled choice of a candidate for office. This is fundamental and one of the essential requisites to a citizenship that is the responsible architect fpr free institutions. State v. Yankee, 129 Wis. 662.
In order that a voter may exercise his free choice in a candidate for public office, and in order that he might not further be hemmed in and bound by some arbitrary
Then it is plain under the provisions of the section just quoted and the provisions of the primary election law that, when the voter at the primary election wrote in the name of the relator and placed a cross opposite, the voter was exercising, not only his statutory right, but as well the right recognized by the general election laws of this state.
The respondent and the relator appeared to have been the only candidates who received the highest number of votes at the primary election, and therefore were entitled to have their names printed upon the ballot for the general' election that followed in November. This section 1995, Rev. St. 1913, provides for a “blank space to be left to vote for persons not named.” Thus when the name of the relator was written in by nine voters at the primary election, these votes were cast in and by authority of a statutory provision that, gave the author
The general purpose of holding an election is to determine the intention and choice of electors of the state and nation as to what is their manifest desire, and as to who shall perform the duties of a certain political office, and the only way to ascertain this is from the ballot, and whatever there may be in the preparation of such ballot, these cannot be urged for the first time after the election, because this method' would clearly defeat the express intention of the voter, and that is the fundamental purpose of holding an election; so then it follows that the voters of the state cannot be limited to those candidates who have filed their names or their petitions to be placed on the ballot at the primary, and, in order to have the proceeding free and untrammeled, .it is permissible both by statute and by custom for a voter to name his own candidate, and the name of the person so written in and voted for by the elector has the same standing as though his name were printed on the ballot. This proceeding then was commenced some time after the election in November, when it is the law of the state that, whatever objection respondent might have to urge, it should be instituted in the proper forum sometime between the primary election in August and the general election in. November.
To allow proceedings to be instituted any time after election would simply mean the defeat of the clearly expressed intention of the voter. Tutt v. Hawkins, 53 Neb. 367. So important is the policy that a voter shall
Judgment of ouster.