State ex rel. Whedon v. Smith

• Citation: 77 N.W. 384,57 Neb. 41
• Parties: STATE EX REL. WHEDON v. SMITH, COUNTY CLERK.
• Decision Date: 08 December 1898
• Court: Nebraska Supreme Court

57 Neb. 41

77 N.W. 384

STATE EX REL. WHEDON

v.SMITH, COUNTY CLERK.

Supreme Court of Nebraska.

Dec. 8, 1898.

Syllabus by the Court.

1. A general appearance in an action by a defendant confers jurisdiction over his person, though no summons was ever served upon him.

2. Jurisdiction of the subject-matter is the power to hear and determine the cause.

3. This court has original jurisdiction in actions of mandamus.

4. A nomination to public office made by 4 out of 28 members of a county committee chosen by a political party is invalid, where previous notice of the time and the place of the meeting of the committee has not been given to the other members thereof.

Application by the state, on the relation of Frank L. Whedon, for a writ of mandamus against Sidney E. Smith, county clerk of Buffalo county. Granted.

Ragan, C., dissenting.

H. M. Sinclair, for relator.

F. E. Beeman, for respondent.

NORVAL, J.

This was a petition for a peremptory mandamus to compel the respondent, as county clerk of Buffalo county, to print the official and sample ballots for the general election in November, 1898, without names of J. M. Easterling and Emery Wyman as nominees of the Democratic party for representatives of the Fifty-Eighth representative district. To the application the respondent demurred for the reasons following: (1) The court has no jurisdiction over his person or the subject-matter; (2) the petition does not state sufficient facts to constitute a cause of action. Just prior to the said election a submission was taken on the demurrer, its sufficiency was sustained, and a peremptory writ was awarded as prayed. This opinion is filed in pursuance of the announcement then made.

We are all agreed that jurisdiction over the person of the respondent was acquired by his entering a general appearance herein by counsel, without the issuance and service of a summons in the cause. South Omaha Nat. Bank v. Farmers' & Merchants' Nat. Bank, 45 Neb. 29, 63 N. W. 128.

The question of jurisdiction of the subject-matter in this kind of a proceeding ought to be no longer an open one in this state. Jurisdiction has been entertained in similar causes in State v. Allen, 43 Neb. 651, 62 N. W. 35, and Woods v. State, 44 Neb. 430, 63 N. W. 23, and the recent case of State v. Clark (Neb.) 77 N. W. 87, although the question of jurisdiction was not raised in any of them, but was necessarily involved in all. The last was an original application for mandamus to require the county clerk of Nuckolls county to place on the ballots for use at the election held in November last the name of Joseph Patterson as candidate for county commissioner. Certificate of his nomination in due form had been filed with the respondent therein, yet he declined to recognize the validity of the certificate, and refused to place the name of Patterson upon the ballots as the nominee for said office. A peremptory writ issued. In State v. Piper, 50 Neb. 25, 69 N. W. 378, the question of jurisdiction of this court over the subject-matter was squarely raised, and decided adversely to the contention of the respondent herein. Ryan and Irvine, C. C., did not sit in the cause, and Ragan, C., filed an opinion dissenting from the conclusion of the court on that proposition. The decision on that point was followed in State ex rel. Dahlman v. Piper, 50 Neb. 39, 69 N. W. 1150;State ex rel. Casper v. Piper, 50 Neb. 40, 69 N. W. 383;State ex rel. Rose v. Piper, 50 Neb. 42, 69 N. W. 384. In the opinion reported in 50 Neb. 25, 69 N. W. 378, this court, in passing upon the jurisdictional question, after quoting section 136, c. 26, Comp. St., said: “A mere reading of the foregoing is sufficient to disclose that it was the purpose of the legislature to give to the secretary of state, or other officer with whom certificates of nomination are required to be filed, the power, in the first instance, to pass upon all objections to such certificates or nomination papers, and whose decision in the premises is at the furthest limit to be regarded as final, where no ‘order shall be made in the matter by the county court, or by a judge of the district court, or by a justice of the supreme court at chambers,’ within the time fixed by the statute. If the determination of the secretary of state is absolutely final, it could not anywhere else be questioned. That his decision is not necessarily conclusive follows from the fact that the statute has made provision for reviewing the same, or rather for the determination of the questions by the county court, or by a judge of the district or supreme court. Whether the portion of the act is valid which attempts to confer power in such matters upon the judge of this court at chambers has been seriously doubted,--so much so that the present judges have not entertained such jurisdiction. The rulings of the secretary of state could be deemed final only when not reviewed by the court or officer authorized by the statute to do so, and when he properly determines such questions alone as he is empowered by law to decide; that is, when he has proceeded legally and within his jurisdiction. If he has acted illegally or without jurisdiction, his decision is without validity. Suppose a certificate of nomination should be filed after the statutory period, and he should determine to certify the names of the nominees therein mentioned; his action would not be conclusive or binding. Or should he refuse to certify the names of the candidates mentioned in a certificate in due form, who were properly nominated, and against such certificate no protest has been filed, his action would not be final, even though no order had been made in the premises by the court or judge mentioned in law; and most assuredly mandamus would lie to compel him to certify the names of such nominees to the county clerks, because the duty is purely a ministerial one enjoined by law, involving no discretion. Again, should the secretary of state determine which of two rival conventions of the same political party was the regular convention, where both were called and held in accordance with the usages of the party, and each made nominations in good faith, and certified the same in due form to him within the statutory time, and should certify the names of one set of candidates, and decline to certify the other, mandamus could be invoked against him. His decision would not be final, should he, without a hearing of objections properly made and filed to a certificate of nomination, determine that the names of the candidates therein mentioned should or should not appear upon the official ballot. There are many other instances which might be given where mandamus would be the appropriate proceeding to compel the secretary of state to act. Clearly, it was not the purpose of the election law to take away the right theretofore conferred upon the courts to compel by mandamus the performance by an officer of the purely ministerial duty enjoined by law.” We adhere to that decision. It is true, said chapter has not conferred upon this court power to control the action of the county clerk or other officer whose duty it is made by statute, in the first instance, to pass upon questions of the validity of nominations, and whose names shall appear upon the official and sample ballots, but that is no valid argument against the power of this court to hear and determine this controversy. The constitution and the statute have conferred original jurisdiction upon this court in mandamus, and no other or further authority is required to entertain the action. Jurisdiction is the power to hear and decide a legal controversy, and there is no escaping the conclusion that the court has cognizance of the subject of the cause. The question of...