Tutt v. Hawkins
53 Neb. 367
Neb.
1898
Check Treatment
Ryan, C.

There was filed in the office of the clerk of the district court of Cass county a petition in which the plaintiff John D. Tutt alleged that at the municipal election held in the city of Plattsmouth on April 3, 1894, the whole number of votes cast for councilman of the Fifth ward was 194, of which 79 were for William Slater, 49 were for George C. Hawkins, the contestee, 40 were for said John D. Tutt, and 26 were for Edwin Bates;.that upon a canvass of said votes made by the city council of said city William Slater and George C. Hawkins were declared elected. It was futher alleged in the petition that the whole number of votes counted for councilman to fill *368a vacancy was 66, of which Tutt received 40 and Edwin Bates 26. By the answer of the contestee it was asserted that the votes cast for councilman for the Fifth ward were not canvassed with reference to filling a vacancy, but it was alleged that the four candidates were competitors for the office of councilman for' said ward, without reference to whether the candidacy was for the entire or for the unexpired term, and that, relying upon precedent, the candidate receiving the highest number of votes held the full term and the candidate receiving the next highest vote held the unexpired term. We need not consider the issues at greater length, for the question to be determined is whether or not it was proper to follow the alleged precedent. The official ballot with reference to councilman for the Fifth ward was printed as follows:

“Edwin Bates (to fill vacancy) Republican
“George O. Hawkins Republican
“Wm. Slater Democrat
“J. D. Tutt (to fill vacancy) Democrat”

It was correctly recited in the petition that Hawkins received 49 while Tutt received but 40 votes; but a reference to the form of ballot cast shows that the electors were not voting for them as rivals for the same office. The intention of the voter must be gathered from the ballot which he actually casts and cannot be defeated by evidence that the ballots were not prepared in accordance with the intention of a political convention by which one of the nominations was made. After an election held without, objection to the form of the ballot it is too late to question the result. (State v. Norris, 37 Neb. 299.) The district court erred in reaching the conclusion which it did and its judgment is accordingly reversed.

Reversed and remanded.