Scott v. McGuire

• Decision Date: 02 January 1884
• Citation: 18 N.W. 93,15 Neb. 303
• Parties: ALEXANDER SCOTT, APPELLANT, v. JOHN MCGUIRE ET AL., APPELLEES
• Court: Nebraska Supreme Court

18 N.W. 93

15 Neb. 303

ALEXANDER SCOTT, APPELLANT, v. JOHN MCGUIRE ET AL., APPELLEES

Supreme Court of Nebraska

January 2, 1884

APPEAL from Wayne county. Heard below before BARNES, J.

AFFIRMED. Motion for rehearing overruled.

Andrew Bevins, for appellant.

Britton & Northrop, for appellees.

OPINION

LAKE CH. J.

This is an appeal from Wayne county. The action was brought by the appellant to have the defendants--the board of county commissioners--enjoined "from removing the county seat of said county, * * * or any of the county offices or county records or papers" from the town of LaPorte to the town of Wayne, "and from holding any meetings at the said town of Wayne, or any other place except at the said town of LaPorte," etc.

It appears from the petition that an election had been called and held in said county on the question of the removal of the county seat from LaPorte to the town of Wayne. Although the result of that election is not definitely alleged, enough is stated to show, inferentially, that it was in favor of Wayne.

Several questions were discussed by the respective counsel, which would have been pertinent if this were a case of contest under the statute to have the declared result of the election vacated, but are wholly immaterial to this issue, and we shall not notice them except perhaps incidentally. This action is in no sense an election contest between these rival towns, as the parties litigant, the whole frame of the petition, and the prayer for relief plainly and most conclusively show. Such a contest, although it must, under the election law of March 1st, 1879 [Comp. Stat., Ch. 26], he brought in the district court, is essentially a legal remedy. The desired object in such a case is to have the declared result of the election vacated. This, however, cannot be reached by an order of injunction restraining county officers from removing their offices to the re-located county seat and transacting business there, but by a judgment formally setting aside the result arrived at and declared by the canvassers of the votes cast at the election, in an action brought to contest it. Such an injunction would compel a violation by these officers of a positive command of the statute (Sec. 9, Art. III., Ch. 17, Comp. Stat.), that on the re-location of the county seat, they "forthwith remove their respective offices, and all county records, papers, and property in their offices or charge to...