Burke v. Perry

• Decision Date: 16 May 1889
• Citation: 42 N.W. 401,26 Neb. 414
• Parties: BURKE v. PERRY ET AL.
• Court: Nebraska Supreme Court

26 Neb. 414

42 N.W. 401

BURKE

v.PERRY ET AL.

Supreme Court of Nebraska.

May 16, 1889.

Syllabus by the Court.

1. A complaint filed in an election contest will be held sufficient in substance if the statute which prescribes what its contents shall be is followed.

2. The decision of a special tribunal, where it has jurisdiction of the subject-matter and parties, is conclusive unless reversed or modified in the mode provided by law. State v. Nelson, 21 Neb. 572, 32 N. W. Rep. 589.

3. A contest of an election is an adversary proceeding, and where the election to be contested is one upon the question of relocating a county-seat, persons or localities having an interest adverse to the contestant, or some of them, are necessary parties to the contest, and such interest must be shown by the complaint.

Appeal from district court, Gosper county; COCHRAN, Judge.Capps & McCreary, for plaintiff in error.

W. S. Morlan and Marquett, Deweese & Hall, for defendants in error.

REESE, C. J.

This was a proceeding to contest a county-seat election in Gosper county. A complaint was filed in the district court, to which the defendants demurred, and, upon the demurrer being sustained and the case dismissed, the plaintiff brings it into this court by proceedings in error, assigning as such error the decision of the district court on the demurrer. The complaint is entitled “Abdon L. Burke, Complainant, v. Arthur V Perry, Chairman Board of County Commissioners, and William F. Wagner and Jonas E. Chambers.” There is no allegation in the complaint that any of the defendants are the board of county commissioners of Gosper county, nor is any other reference made to them in any part of it. The allegations of the complaint may be fairly summarized as being that on the 2d day of October, 1888, a petition purporting to be signed by three-fifths of the voters of Gosper county, as shown by the last preceding general election, was filed with the board of county commissioners, asking them to call a special election in said county for the purpose of voting upon the question of relocating the county seat of said county; and that said board, treating the petition as legal, and complying with the requirements of the law, ordered an election for the purpose named, to be held on the 30th day of the same month, and which election was accordingly held; that the board had no authority or jurisdiction to call said election, for the reason that the petition was not signed by three-fifths of the legal voters of said Gosper county; that at the election held there was misconduct, fraud, and corruption in two precincts in the county, to-wit, Plum Creek and Robb precincts; that at Plum Creek the judges of the election knowingly permitted fraudulent and illegal votes to be cast by persons under 21 years of age, and by persons who were not citizens of the United States, nor of this state, and those who had not resided in the state, county, and precinct a sufficient length of time to be entitled to vote at said election; that the voters and parties interested in the election were not permitted to see the ballot-box during the election, but that it was kept secreted, and in a place where it could not be seen during the progress of the election, and that while counting the ballots, in making the returns, those who were opposed to the relocation of the county-seat were by said judges refused admittance to the room in which the canvass was made, and did admit those who were favorable to such relocation, the judges of election at the time well knowing the interest of the persons so admitted and excluded; “that the ballots so cast at said polling-place aforesaid, and received by the said judges of election in said precinct, were sufficient to change the result of said election;” that the polls were opened and the voting commenced “long before eight o'clock in the morning of said 30th day of October, the day fixed in said notice for the holding of said election, and that sundry and divers votes were so at said time cast by sundry persons to the complainant unknown,” the number thereof being sufficient to change the result of said election; “that there were legal votes suppressed by the judges of said election in said Plum Creek precinct, they being votes cast in favor of Homerville, but that the judges of election refused to count or canvass them, and abstracted them from the ballot-box and destroyed them;” that in Robb precinct the judges of election knowingly received the votes of persons under 21 years of age, and votes of persons who were non-residents of state, county, and precinct, and of those who had not resided in the precinct sufficient length of time to entitle them to vote; and that the said fraudulent votes, so cast, were sufficient in number to change the result of the election in said county; that after the votes of said precinct were counted and canvassed the clerks of election failed to sign the poll-books, and the judges of said election failed to certify to the vote and the count thereof. It was alleged generally, with reference to the election in the county, that parties favorable to the relocation of the county-seat at said election “offered and gave to electors and canvassers of said...