State ex rel. King v. Solomon

• Decision Date: 17 July 1908
• Docket Number: 15,280
• Citation: 117 N.W. 348,82 Neb. 200
• Parties: STATE, EX REL. OTTO J. KING, APPELLANT, v. EDWARD J. SOLOMON ET AL., APPELLEES
• Court: Nebraska Supreme Court

117 N.W. 348

82 Neb. 200

STATE, EX REL. OTTO J. KING, APPELLANT, v. EDWARD J. SOLOMON ET AL., APPELLEES

No. 15,280

Supreme Court of Nebraska

July 17, 1908

APPEAL from the district court for Webster county: ED L. ADAMS, JUDGE. Affirmed.

AFFIRMED.

Thomas Darnall, for appellant.

Bernard McNeny, contra.

EPPERSON, C. DUFFIE and GOOD, CC., concur.

OPINION

EPPERSON, C.

The relator was a candidate for the office of village trustee of the village of Bladen at the election held April 2, 1907. He and one other candidate received an equal number of votes, whereupon by agreement they cast lots to determine which of the two should hold the office. The result was favorable to relator. He now seeks a peremptory order to compel the village board to issue to him a certificate of election. Our statutes nowhere provide for the selection by lot of a village trustee when two candidates receive an equal number of votes. It was incompetent, therefore, for the relator and his adversary by agreement between themselves, or otherwise, to determine which one should hold the office. Neither was elected. Under these circumstances, relator was not entitled to the writ. Such has been the decision in each case we have been able to find where this question was before the court. Beck v. Board of Election Commissioners, 103 Mich. 192, 61 N.W. 346; State v. Adams, 2 Stew. (Ala.) 231; Hammock v. Barnes, 4 Bush (Ky.) 390; Reed v. Cosden, 1 Clarke & Hall Elec. Cas. (Md.) 353.

The judgment of the district court refusing the peremptory order and dismissing relator's case was right, and we recommend that it be affirmed.

DUFFIE and GOOD, CC., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is

AFFIRMED.