Hagge v. State ex rel. Wiseman
| Decision Date | 04 February 1880 |
| Citation | 4 N.W. 375,10 Neb. 51 |
| Parties | WILLIAM HAGGE, PLAINTIFF IN ERROR, v. THE STATE, EX REL. E. R. WISEMAN, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court of Hall county. Tried below before POST, J.
AFFIRMED.
O. A Abbott, for plaintiff in error.
The official return of officers who so neglect and violate their oaths of office should not be received in evidence, but other evidence should have been produced on behalf of the party claiming under such terms. Either the ballots should have been produced or the electors themselves summoned. See McCrary's Law of Elections, 228 and 229, and cases there cited. Littlefield v. Green, 1 Chicago Legal News, 230. Brightley's Election Cases, 493. Mann v Cassiday, 1 Brewster, 60. Thompson v. Ewing, 1 Brewster, 107. Weaver v. Given, 1 Brewster, 140. Batturs v. Megory, 1 Brewster, 162. Gibbons v Stewart, 1 Brewster, 1.
Thummel & Platt, for defendant in error, cited Linn v. Marshall County, 16 Kansas, 132. Gilleland v. Schuyler, 9 Kan. 569. Kane v. People, 4 Neb. 515. Pratt v. People, 29 Ill. 54.
This is a proceeding in quo warranto, instituted by the relator against the plaintiff in error, to oust him from the position of treasurer of Hall county, and to instate the relator therein. On the trial of the cause in the district court, judgment was rendered in favor of the relator. The defendant therein brings the cause into this court by petition in error. It appears from the bill of exceptions that at the general election in the year 1878, Martinsville precinct, in Hall county, cast twenty-two votes, twenty of which were cast for the relator and two for the plaintiff in error, and that the entire vote of this precinct was thrown out and not counted by the board of canvassers. The only question in dispute is the authority of the board of canvassers to reject such votes.
Section 14 of the act to provide a general election law, approved February 27, 1873 (Gen. Stat., 352), provided that "when all the votes shall have been examined and counted, the clerks shall set down on their poll books the names of every person voted for, written at full length, the office for which such person received such vote or votes, and the number of votes he received, which number shall be expressed in words at full length; such entry to be made in the following manner and form," etc." [giving form].
Sec. 15 provides that "the judges of elections shall then inclose one of the poll books, full...
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