State ex rel. Love v. Cosgrave
| Decision Date | 09 October 1909 |
| Docket Number | 16,281 |
| Citation | 122 N.W. 885,85 Neb. 187 |
| Parties | STATE, EX REL. DON L. LOVE, APPELLANT, v. P. JAMES COSGRAVE, COUNTY JUDGE, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.
AFFIRMED.
Flansburg & Williams, for appellant.
T. J Doyle and G. L. De Lacy, contra.
At the general municipal election held in the city of Lincoln on the 4th day of May, 1909, Don L. Love, relator, and Robert Malone were candidates for the office of mayor of the city of Lincoln. As a result of the canvass of the returns of the election made by the mayor and council as a canvassing board, it was declared that the relator had been duly elected to the office of mayor of the city, and a certificate of election was issued to him by the city clerk. He thereupon took the oath, entered upon the possession of the office and is still acting in that capacity. On the 14th day of May, 1909, Robert Malone filed his petition in the county court of Lancaster county, before P. James Cosgrave, county judge, seeking to contest the election of the relator to the office of mayor. A petition was filed, and summons issued and served upon the relator, who objected to the jurisdiction of the court on the ground that the determination of the right to the office of mayor was vested exclusively in the mayor and council of the city of Lincoln, and that their decision declaring him entitled to the office was conclusive. This objection to the jurisdiction was overruled, and the cause retained for trial, whereupon the relator brought this action in the district court for Lancaster county, praying that a peremptory writ of mandamus be issued directed to the respondent, P. James Cosgrave, as county judge, commanding him to dismiss said contest of Robert Malone against Don L. Love for want of jurisdiction, and to proceed no further in the case.
The petition alleged that prior to the election there was in full force an ordinance of the city prescribing the manner of contesting elections for city officers before the city council, and providing that the certificate of election should be withheld until the matter was finally determined by that body, when it should be issued to the party found to be entitled thereto; that Malone was present at the canvass of the vote, made no objection thereto, and gave no notice of any intention to contest the election. It further alleges that the court was without jurisdiction to determine the contest after the certificate of election had been issued to the relator; that the hearing, if had, will extend over a long period of time, will require the examination of upwards of 8,000 ballots and over 50 poll-books and the examination of many witnesses, and will cause much useless expense; that, the court being without jurisdiction, no valid judgment for costs could be rendered in his favor, and that the proceedings in all particulars would be void. The answer of the respondent substantially admits the allegations of the petition, except those with respect to want of jurisdiction, which, it pleads affirmatively, rests alone in the county court. Upon these issues the district court found that the county court had jurisdiction, and dismissed the proceedings, from which judgment this appeal has been taken.
By the provisions of section 129 of the act under which the city of Lincoln is now governed, the city is granted power by ordinance "to appoint judges and clerks of election provided by ordinance for the election of city officers, and prescribing the manner of conducting the same, and the returns thereof, and for deciding contested elections, and for holding special elections for any purpose herein provided, and to fix a compensation for all officers of election." Laws 1901, ch. 16, sec. 129, subd. 48; Ann. St. 1907, sec. 8076. A similar provision was included in the charter act which was in force in 1895. In the latter year an ordinance was adopted by the city, which is set forth in relator's brief, as follows: Section 71 of the general election law (Comp. St. 1907, ch. 26) provides: "The county courts shall hear and determine contests of all other county, township and precinct officers, and officers of cities and incorporated villages within the county." It is contended by the relator that the act of 1887, providing for the organization of the government of cities, and conferring power upon the council to pass ordinances for "deciding contested elections," which power was exercised by the passage of the ordinance above referred to, constituted a repeal, within the corporate limits of the city of Lincoln, of the general law providing for contests of election of city and village officers, and that the jurisdiction thereby conferred upon the city council is exclusive, while the respondent contends: First, that the ordinance itself evinces no such purpose; second, that it is beyond the legal power of a city to repeal by ordinance a general law of the state.
In order to determine the meaning of the language used by the legislature, it is proper to examine the course of legislation upon the same general subject, and to consider in what connection and with what context it has been theretofore employed. The exact language we are considering, first appears in the legislative history of this state in an act entitled "An act to incorporate cities of the second class," approved March 1, 1871, by which act the city was given power to enact ordinances "to appoint judges of all elections provided by ordinance for the election of city officers, and prescribing the manner of conducting the same, and the return thereof, and for deciding contested elections, and for holding special elections for any purpose herein provided." Laws 1871, p. 26, art. III, sec. 13. In March, 1879, a new act was passed (laws 1879, p. 193), omitting the provision giving power to the council to decide contested elections, and at the same session the present general election law was passed (laws 1879, p. 240), which confers upon the county court the power to hear and determine contests of the election of officers of cities and incorporated villages within the county, and which further provides the method of procedure in the courts. At the end of this session of the legislature, therefore, the power to decide contested elections as to city officers had been taken from the city council and vested in the county court. In the act of March 1, 1883, which provided for the organization and government of cities containing between 10,000 and 25,000 inhabitants, the language of the earlier act was again inserted (laws 1883, ch. 16, sec. 52, subd. 12), and in 1887 an act providing for the government of cities of more than 25,000 and less than 60,000 inhabitants was passed (laws 1887, ch. 11, sec. 68, subd. 26), containing the identical language used in the acts of 1871 and of 1883. No change in this respect has since been made.
Up to the time of the passage of the general election law in 1879 no tribunal was provided by statute in which a contest for the election of city officers could be had, unless one had been established by the city council under the general power to enact ordinances "to decide contested elections." In 1879 this power was withdrawn, but in 1883 it was again conferred, and, in our opinion, still exists.
It is said, however, that it is beyond the power of the city to repeal by ordinance a general law of the state. There is no doubt that this is true with reference to some general laws but it is not true as to all. Penal statutes passed under and by virtue of the police powers of the state may not be limited or cut down in their operation by ordinances passed by municipal corporations under the police power. It could never be the intention of the legislature to grant powers which might be used to abrogate and nullify the existing general laws upon such subjects, though it has been held the city may impose additional penalties. But as to such matters as might be, and have in the past been, committed to the control of the corporate authorities, but as to which the state has later assumed control, an act reconferring the power upon the municipal authorities is not inconsistent with the general law, and an ordinance passed in pursuance of such power will have the same effect within the limits of the city as if it had been passed by the legislature itself. 1 Smith, Modern Law of Municipal Corporations, sec. 522; Ingersoll, Public Corporations, p. 236; 28 Cyc. 365, 366. If the ordinance is repugnant to the general law, the general law will yield, or, if not...
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