Thomas v. Franklin
| Decision Date | 16 October 1894 |
| Citation | 60 N.W. 568,42 Neb. 310 |
| Parties | THOMAS v. FRANKLIN ET AL. |
| Court | Nebraska Supreme Court |
1. The proceeding for contesting an election provided for by chapter 26, Comp. St. 1893, is, strictly speaking, neither an action at law nor in equity. It is a summary proceeding of a political character, and the proceeding cannot be maintained by any person, unless authority therefor is found in the statute itself.
2. This court, in an action at law or in equity, will, on its own motion, look into the record of a case brought here on appeal or error, for the purpose of determining whether the petition upon which the action is founded states a cause of action, and whether the court has jurisdiction of the subject-matter of the suit.
3. In a special proceeding founded solely upon a statute, it is not only the privilege, but it is the duty, of this court, on its own motion, to look into the record of the proceeding brought here, and determine whether such proceeding is authorized by such statute, and whether the party prosecuting the proceeding is by the statute authorized to do so.
4. When one elector of a county, in his own name and on his own behalf, seeks to defeat the presumed will of the people of his county upon any subject as declared by a canvass of their votes at an election, and for that purpose invokes the provisions of a special statute for contesting the validity of such election, then the special statute invoked must, expressly or by necessary implication, authorize such elector to maintain, in his own name and on his own behalf, such proceeding, or it will be dismissed.
Appeal from district court, Red Willow county; Welty, Judge.
Action by Robert H. Thomas against Vacances Franklin and others to contest an election for the removal of a county seat. Judgment for defendants, and plaintiff appeals. Dismissed.Reese & Gilkeson, S. R. Smith, H. W. Keyes, and W. R. Starr, for appellant.
T. M. Marquett, W. S. Morlan, and A. J. Rittenhouse, for appellees.
Robert H. Thomas brought this proceeding to the district court of Red Willow county against Vacances Franklin and others to contest the validity of an election which had been held in said county for the relocation of the county seat of such county. The district court, after hearing the evidence, rendered a judgment dismissing the complaint of Thomas, and the proceeding is now before us on appeal.
Thomas, in his complaint filed in the district court, alleged that he was an elector of Red Willow county, and as such interested in the relocation of the county seat of said county at Indianola, a city in said county, and was competent to contest the election which had been held for the purpose of relocating said county seat. Can the appellant maintain this proceeding? If he can, it must be because the statute authorizes any elector of a county to contest the result of an election held for the purpose of relocating the county seat thereof. The statutory provisions for contesting elections are found in chapter 26, Comp. St. 1893. Section 64 of this chapter provides: “The election of any person to any public office, the location or relocation of a county seat, or any proposition submitted to the vote of the people, may be contested.” The remainder of the section provides upon what grounds the validity of an election held may be contested. Section 70 of said chapter is as follows: “The district courts of the respective counties shall hear and determine contests of the election of county judge, and in regard to the removal of county seats, and in regard to any other subject which may by law be submitted to the vote of the people of the county, and the proceedings therein shall be conducted as near as may be hereinafter provided for contesting the election of county officers.” Section 72 of said chapter provides that any elector of the state may contest the validity of the election of any of the officers of the executive department of the state, and that an elector of a county or legislative district may contest the election of a member of the legislature from...
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Ashley v. Richard
...the summons." The sections quoted above are practically the same as corresponding sections of the statutes of Nebraska. In Thomas v. Franklin, 42 Neb. 310, 60 N.W. 568, it said: "It will thus be seen that, while the legislature has provided that the validity of an election locating or reloc......
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Barnes v. City of Lincoln
...upon the face of the returns, as against Spencer, was declared by the canvassing board to have been successful. Upon authority of Thomas v. Franklin, supra, the was dismissed, thus affirming and following that case. In Dodson v. Bowlby, supra, quoting from Thomas v. Franklin, 42 Neb. 310, 6......
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