Miller v. Wheeler

• Citation: 33 Neb. 765,51 N.W. 137
• Parties: MILLER v. WHEELER. CRAWFORD v. NORRIS.
• Decision Date: 20 January 1892
• Court: Supreme Court of Nebraska

33 Neb. 765

51 N.W. 137

MILLER

v.WHEELER.

CRAWFORD

v.NORRIS.

Supreme Court of Nebraska.

Jan. 20, 1892.

Syllabus by the Court.

1. In an action to contest the election of certain judges of the district courts, held, that the limitation in section 2, art. 6, of the constitution, of the original jurisdiction of the supreme court to cases relating to the revenue, civil cases in which the state shall be a party, mandamus, quo warranto, and habeas corpus, was a prohibition upon the power of the court to entertain original jurisdiction in other cases, and that a contest of election is essentially a judicial proceeding.

2. There is no power in the legislature to constitute the supreme court a board to try contests of elections, as the powers and duties of the court are essentially judicial in their nature, and cannot be perverted from that purpose.

Action by J. C. Crawford against W. F. Norris to contest his election to the office of district judge, and action by M. Miller to contest the election of Robert Wheeler to the office of district judge. Actions dismissed.M. M. McLaughlin and S. H. Steele, for contestants.

Barnes & Tyler, Jay & Beck, C. C. McNish, Uriah Bruner, George B. France, R. S. Norval, and Thomas Darnall, for contestees.

MAXWELL, C. J.

The plaintiff Miller contests the right of Wheeler to the office of judge of the district court of the fifth judicial district. The plaintiff Crawford contests the right of Norris to the office of judge of the eighth district. In each of these cases a petition has been filed in this court, and the proceedings for contest instituted herein. Each of the defendants demur to the petition of contest upon the ground that the court has no authority as a court of original jurisdiction to hear and determine the cases. As the same question is presented in each of the cases, they will be considered together.

Section 2, art. 6, of the constitution, provides “that the supreme court shall consist of three judges, a majority of whom shall be necessary to form a quorum or to pronounce a decision. It shall have original jurisdiction in cases relating to the revenue, civil cases in which the state shall be a party, mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as may be provided by law.” In Bell v. Templin, 26 Neb. 249, 41 N. W. Rep. 1093, an original action was brought in this court to contest the right of a county attorney, and the defendant demurred to the petition for want of jurisdiction. It was held that, a county attorney being a county officer, the proceedings should be instituted in the county court of the proper county. In that case it is said: “Where, however, the district comprises a number of counties, or the entire state, it is necessary to provide a tribunal with wider powers than is possessed by the tribunal spoken of in either section 70 or 71 of chapter 26, Compiled Statutes; hence it is sought to confer this power on the supreme court. The supreme court undoubtedly has power in actions of quo warranto, and probably in a proceeding to contest an election in any of the cases mentioned in section 69, c. 26. The original jurisdiction of the supreme court in judicial proceedings is fixed by section 2, art. 6, of the constitution, and is limited to cases relating to the revenue, mandamus, quo warranto, habeas corpus, and cases in which the state shall be a party. The designation of these cases in which the court has original jurisdiction is a direct prohibition of jurisdiction in other cases. The maxim, expressio unius est exclusio alterius,...