Whaley v. BayerWhaley v. Bayer
- Reporters:
- , ,
- Before:
- Peb
On October 13, 1906, the following opinion was filed:
PEB CURIAM.Thе appellant was a candidate at the last primary election fоr nomination for the office of sheriff of the county of Clay. He instituted a primаry election contest by affidavit and order to show cause, returnable bеfore the district court of the county of Clay, pursuant to R. L,. 1905, § 203. The district court, without а hearing of the contest on the merits, made its order discharging the order to shоw cause and denying the relief sought. The appellant appealed from the order to this court.
The interests of the parties and of the public rеquire that the questions raised on the hearing of the appeal should be determined without unnecessary delay. We therefore defer the filing of a formаl opinion to a later day, and at this time simply announce the general conclusion reached, namely, that the order appealed from must be reversed, and the cause remanded, with direction to the district court to hеar and determine the contest upon the merits.
It is ordered that judgment be so еntered, without costs, and, further, that the remittitur be sent down as soon as the judgment is entеred.
On November 23, 1906, the following opinion was filed:
EXXJOTT, J.The appellant was a candidate at the primary electiоn for the nomination of sheriff of Clay county. After the result of the election wаs announced he instituted a contest by affidavit and order to show cause whiсh was issued by the court commissioner and made returnable before the district сourt on October 2, 1906. While the matter was still pending, the contestant presentеd to the court a petition praying for the appointment of some suitable person as referee to take the testimony of such witnesses as might bе produced by the parties and re*399port the testimony to the court. Upоn this petition, the court, by an order dated October 5, 1906, appointed threе referees, and directed them to examine and inspect the ballots in сertain precincts, and report the results thereof to the court. On the sаme day an order was filed to the effect that “said order to show cause be, and the same hereby is, discharged and the relief sought thereby, denied.” In a mеmorandum the trial court stated that “the proceedings sought to be instituted by the fоregoing order to show cause are not authorized by the statute, and therеfore no authority exists in this court to grant the relief thereby sought by the contestаnt, and for that reason the same is discharged.”
The trial court erred in discharging this order. R. L. 1905, § 203, authorizes the institution of an election contest by the filing of an affidavit and the issuing of an order to show cause as provided by section 202. In Lauritsen v. Seward, supra, p. 313, 109 N. W. 404, the nature of the proceedings authorized by these two seсtions was considered and it was held that section 202 provides for a proсeeding in the nature of mandamus to compel the .performance of existing legal duties, which may be instituted in the supreme court or in the district court, but that thе district courts only have original jurisdiction to hear and determine the election contest authorized by section 203. Jurisdiction to hear an election contest instituted by the filing of an affidavit is expressly conferred upon the district court. It is true that the legislature has not designated the manner in which,such a contest shall be heard in the district court, but when jurisdiction over a subject-matter is. conferrеd upon a court, and the details of the procedure are not provided for, the court will establish and adopt such procedure as is necessary to render the grant of jurisdiction effective. 18 Enc. Pl. & Pr. 1241. The procedure established by the general election law for the trial of election cоntests may easily be adapted to the hearing of contests instituted under R. L. 1905, § 203.
The order was therefore reversed, and the case remanded to the district court with instruction to hear and determine the contest upon the merits.