State ex rel. Stearns v. Foxworthy

• Citation: 45 N.W. 632,29 Neb. 341
• Parties: STATE EX REL. STEARNS v. FOXWORTHY.
• Decision Date: 08 April 1890
• Court: Supreme Court of Nebraska

29 Neb. 341

45 N.W. 632

STATE EX REL. STEARNS

v.FOXWORTHY.

Supreme Court of Nebraska.

April 8, 1890.

Syllabus by the Court.

1. Ballots cast at an election for justice of the peace in the third district of the city of Lincoln, containing the names of three persons, when but one person is to be elected to that office, are, under section 40, c. 26, Comp. St., void, and cannot be counted for any one for that office.

2. Extrinsic evidence cannot be received to explain or contradict such a ballot.

3. Ballots cast in said district for F., for the office of justice of the peace, are not invalidated as to him because they also contain the name of B. “for justice of the peace of the first district,” and that of C. “for justice of the peace of the second district.”

Quo warranto.R. D. Stearns, N. Z. Snell, A. S. Tibbetts, and W. J. Bryan, for plaintiff.

Chas. L. Hall and Adams, Lansing & Scott, for defendant.

NORVAL, J.

This is an action of quo warranto, brought by R. D. Stearns, county attorney of Lancaster county, to oust the defendant from the office of justice of the peace of the third district of the city of Lincoln, and instate M. L. Easterday therein. The case is submitted to the court on the following stipulation of facts:

“It is hereby stipulated that, at the general election held in the city of Lincoln, Neb., on the 5th day of November, 1889: (1) That J. H. Brown was the regular candidate of the Republican party, E. M. Wolfe of the Democratic party, and S. J. Kent of the Prohibition party, for the officeof justice of the peace from the first district of said city; that each was a resident and elector of said district; and that it was generally known and understood that they were such candidates, residents, and electors. (2) That S. T. Cochran was the regular candidate of the Republican party, and S. S. Royce of the Democratic and Prohibition parties, for the office of justice of the peace from the second district of said city; that each was a resident and elector of said district; and that it was generally known and understood that they were such candidates, residents, and electors. (3) That Charles H. Foxworthy as the regular candidate of the Republican party, and M. L. Easterday of the Democratic and Prohibition parties, for the office of justice of the peace from the third district of said city; that each was a resident and elector of said district; and that it was generally known and understood that they were such candidates, residents, and electors. (4) That, at said election held in said city, there were 605 Republican ballots cast in the third district of said city for the election of justices of the peace, one of which is hereto attached, marked ‘Exhibit A,’ and made a part of this stipulation, and upon each of which ballots the name of Charles H. Foxworthy appears and was voted for as thereon stated, and the names of J. H. Brown and S. T. Cochran also appear and were voted for on each of said ballots as thereon stated. (5) That, at said election held in said city, there were 575 Democratic ballots cast in said third district for M. L. Easterday for justice of the peace from said third district, which ballots were in all respects legal, and upon each of which the name of said M. L. Easterday appears and was voted for for said office. (6) That, at said election held in said city, there were 37 Prohibition ballots cast in said third district for the election of justices of the peace, one of which is hereto attached, marked ‘Exhibit B,’ and made a part of this stipulation, and upon each of which ballots the name of said M. L. Easterday appears and was voted for as thereon stated. Said 37 ballots were all cast in the Fourth ward of said city, which ward comprised a part of said third district. (7) That there were other candidates nominated and voted for for justices of the peace in said city at said election, but that fact has no material bearing upon any issue involved in this case. (8) That each of paragraphs 1, 2, 3, and 7 are subject to objection on the part of the defendant, Charles H. Foxworthy, for incompetency, immateriality, and irrelevancy.”

The following are copies of the exhibits attached to the stipulation:

“Exhibit A. Republican City Ticket. For justice of the peace of the 1st district of the city of Lincoln, and for the city of Lincoln: J. H. Brown. For justice of the peace of the 2nd district of the city of Lincoln, and for the city of Lincoln: S. T. Cochran. For justice of the peace of the 3d district of the city of Lincoln, and for the city of Lincoln: Chas. H. Foxworthy.”

“Exhibit B. 4th Ward Prohibition Ticket. For justice of the peace: S. J. Kent, S. S. Royce, M. L. Easterday.”

It will be observed that in the Prohibition tickets for justice of the peace, S. J. Kent, S. S. Royce, and M. L. Easterday were voted for on the same ticket for precisely the same office, and indistinguishable from Easterday. In the case of State v. Howe, 44 N. W. Rep. 874, it was held that the city of Lincoln was entitled to three justices of the peace,--one to be elected from each of the three districts. Therefore, there was but one justice of the peace to be elected at the last general state election for the third district of said city, by the electors of said district. It is contended by the defendant that the 37 Prohibition votes were counted for Easterday in violation of section 40, c. 26, Comp. St., which provides that, “whenever a ballot shall contain a greater number of names for any one office than the number of persons required to fill that office, it shall be deemed fraudulent as to the whole of the names for that office, but no further, and shall be indorsed, ‘Rejected as to office of ______,’ and disposed of as hereinafter directed; and no ballot...