This is а special proceeding before a justice of the supreme court, under section 2119, Comp. St. 1922, as amended by section 3, ch. 108, Laws 1925, wherein Richard C. Meissner, as relator, seeks a summary order against the respondent, William D. McHugh, Jr., and Albert E. May, election commissioner and deputy election commissioner of Douglas county, respectively, to accept relator’s acceptance of a nomination for county attorney of Douglas county by virtue of a petition filed and alleged to be in conformity to "the provisions of section 2098, Comp. St. 1922, as amended by chapter 98, Laws 1927, and to place relator’s name upon "the official ballot as a candidate for said office to be voted •on by the electors of said county at the election on November 4, 1930. The respondents filed a motion to dismiss, for that the justice of the supreme court had no jurisdiction over the subject-matter nor the parties in this case.
The above mentioned statute under which this special proceeding was instituted, in so far as applicable, is as
The first question for determination is that of the jurisdiction of a justice of the supreme court over the subject-matter and the parties in this proceeding. That portion of the statute conferring jurisdiction upon a justice of the supreme court was incorporated in our statutes as early as 1891. The exact language has survived the changes of numerous amendments to our election laws since that time. See section 11, ch. 24, Laws 1891. The power and authority conferred by this provision is judicial and not quasi-political and administrative. Section 1, art. II of the Constitution, dictates: “The powers of the government of this state are divided into three distinct depаrtments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others except аs hereinafter expressly directed or permitted.” If, there
A county court, a district judge, or a justice of the supreme court at chambers, in a hearing in the matter of the validity of the objections to a certificate of nоmination or nomination statements is sitting as a court inferior to the supreme court. This is strictly a special statutory proceeding, somewhat akin to mandamus. See opinion by Justice Good, State v. Marsh,
The respondents in this case are public officers and this civil action is brought against them by virtue of their office. The cause of action arose in Douglas county. There it was they refused to accept the relator’s acceptance of a nomination by petition. This section of the statute was considered by the court in Harrison v. Cheney,
Questions relating to the ruling of the election commissioner as to the sufficiency of the petition for nomination of the relator were argued by the able counsel who presented this case. Could а signer of said petition remove his name by affidavit averring misapprehension and mistake in the inducement to sign after the time for filing a new petition had expired? And were electors, who were not registered as required in the city of Omahа, in order to vote, eligible to sign such a petition? Having reached the conclusion as to jurisdiction, which seems to us unanswerable, we decline to pass upon these questions. The desire of the relator to offer his services as сounty attorney to the electors of Douglas county at the general election to be held November 4, 1930, appeals to us as a laudable ambition. However, for the reasons heretofore stated, his petition must be dismissed.
Petition dismissed.