
    Thomas Kane, plaintiff in error, v. The People, ex rel., Henry Snyder, defendant in error.
    1. Praotioe: summons. The appearance of a defendant for any other purpose than to challenge the jurisdiction of the court, is a waiver of all defects in the summons,
    2. Quo warranto. An information filed by consent of the district attorney, and in his name, but not officially signed by him, held, no error.
    3.-- — : JURISDICTION. The act relative to proceedings in cases of contested elections, does not deprive the district court of jurisdiction in cases of qtio warranto. The provisions of the statute are merely cumulative.
    4. --■ : EVIDENCE: CONTESTED election. On the trial of an information by quo warranto it appeared from the poll books and returns of the judges of election, that the relator had a majority of all the votes cast, but that the board of canvassers had opened the packages of ballots, required by law to be sealed and deposited in the office of the county clerk, made a pretended recount thereof, and declared the respondent duly elected, The respondent offered in evidence the abstract so made, and the packages of ballots so opened, and offered to produce all the individual volers of tbe county, for the purpose of showing thaf he had received a majority of the votes cast by them. Held, that the evidence was inadmissible, the canvassers having no authority to go behind the poll books and returns and inspect the ballots.
    Tins was an information in tbe nature of a quo warranto, filed in tlie district court of Cheyenne county, to test the right of Thomas Kane to hold the office of county treasurer of that county. On the trial-of the cause before Hon. Samuel Maxwell, and a jury, L. Connell, the county clerk, was introduced as a witness, and testified: “I voted at the general election for a person for the office of county treasurer.” Thereupon counsel for said Kane asked, “For whom did yon vote?” Objected to as immaterial; objection sustained. Thereupon counsel for said Kane offered to produce other witnesses, for the purpose of showing that said Kane received a majority of the legal votes cast at said election for county treasurer, by producing all the individual voters of said county who voted for liim at said election, asking them how they voted for said office; which proposal the said court would not entertain, on the ground that such evidence would be irrelevant.
    L. Connell further testified, “I am county clerk. I have in my possession the poll books and returns of the several precincts in this comity of the election held on the 14th of October, 1873. (Poll books introduced in evidence, and showed that said Henry Snyder received for the office of county treasurer, eighty-three votes, and Thomas Kane, the defendant, seventy-eight votes.) These returns were received by me within the time requiring their return. The ballots were returned sealed up in packages. They were opened by the canvassers, and we found that Thomas Kane had a majority of the votes cast. The poll books and returns showed Snyder had a majority of the votes, but in counting the ballots returned, they gave Kane a majority, and the abstract of votes made by the canvassers was as to treasurer made upon that count. None of the poll books were rejected by the canvassers. (Abstract offered in evidence, and excluded.) There is no record in my office of a copy of the abstract on the books, and never was.” Thereupon the defendant requested that said ballots might be brought into court, and counted by proper persons in presence of the jury, but the court excluded the profert of such evidence, on the ground that the canvassers and clerk could not go behind the poll books and returns, and had no authority to inspect the ballots, to which ruling of the court, the defendant excepted.
    Upon this evidence, under instructions of the court, the jury returned a verdict for the relator, and judgment of ouster being rendered against Kane, he brought the cause here by petition in error.
    
      Charles JEL. Brown and J. M. Thurston, for plaintiff in error.
    
      I. The court had no jurisdiction, unless the information was filed by the district attorney. The law gives him discretionary powers, and the exercise thereof is an act judicial in its nature, and must be performed by him in his official capacity. Gen. Stat., 646, 871. High on Ex. Legal Remedies, 45. His official signature was required to the information, and the authority to affix it could only be delegated by the appointment of a deputy. Chapman v. Inhabitants 56 Me., 390.
    II. Where an express remedy is given by statute, mandamus will not lie, and a party must resort to his special remedy. The same rule applies with equal force to quo warranto. High Ex. Legal Rem., See. 617. Cooley Con. Lim,., 622. Teciumseh Town Site, 3 Neb., 367. A contestant at an election must pursue his statutory remedy; failing to do so he cannot proceed by quo warranto. Com. v. Garrigner, 28 Penn. Stat., 9. Com. v. Baxter, 35/<ri., 263. State v. Ma/rlow, 15 Ohio State, 114. State v. Cockerel, 2 Rich., 6.
    III. The returns of the canvassing board, and of the judges and clerks of election, are not conclusive. People v.Seaman, § Denio, 409. Peoplev. Van Slych,^ Cow., 297. Cooley Con., Lim., 622. High Ex. Leg. Rem., Sec. 63.8. The question is who received the most votes? The court, therefore, erred in excluding the evidence offered by plaintiff in error.
    
      M. B. Hoxie, District Attorney and John DeLaney, for the relator, defendant in error.
    I. The court had jurisdiction. State v. Fitzgerald, 44 Mo., 425. State v. St. Louis, 38 Mo., 402 Hummer v. Hummer, 3 G. Greene, 42. People v. Holden, 28 Cal., 129.
    
      II. The evidence was properly excluded.. The State b. Donnewirth, 21 Ohio State, 216. The People v. Oieott, 16 Mieh., 294.
   Lake, Ch. J.

I. The sole object of a summons is to bring the defendant before the court; and. although irregularly, or even illegally issued, if there be an appearance for any other purpose than to challenge the jurisdiction of the court the defect will be waived. Cropsey v. Wiggenhorn, 3 Neb., 108. Crowell v. Galloway, same, 215. The defendant having answered to the merits thereby waived the objections which he had previously made to the summons, and it is not necessary to determine whether they were valid or not.

II. It was objected to the information that it was not filed by the district attorney of that district, and a motion to dismiss it on that ground was interposed. In overruling this motion it is insisted that the court erred. But this objection cannot be sustained. The record shows that the information was filed by consent of the district attorney and in his .name, and he subsequently appeared in person and assisted, in the conduct of the case. The course pursued was unobjectionable, and we see no cause for complaint on that ground.

III. The third objection is that the court had no jurisdiction of the case; or rather that inasmuch as the statutes provide a mode for contesting an election to, this office, it, in effect, deprives the court of all jurisdiction by quo wa/rranto, and can alone be' resorted to. And it has been so held by the supreme court of Ohio. The State, ex rel., v. Marlow, 15 O. S., 114. The constitution of Ohio provides that the general assembly shall determine by law, before what authority, and in what manner, the trial of contested elections shall be conducted.” "Whether or not the same conclusion would have been reached in the absence of such a constitutional provision we are unable to say, but we are inclined to think that it woirld not.

In speaking of the fact that the constitution gave to the court general jurisdiction in quo warrcmbo, which it had been contended could not be abridged by the legislature, they say on page 133: “The constitution expressly confers original jurisdiction in quo warranto upon the supreme and district courts of the state, and looking to these provisions alone, it might well be claimed that such plenary jurisdiction was intended, as could be exercised in that behalf at common law. * * * But it is clear that the power thus conferred may be modified or limited by other provisions of the same instrument, equally express.” Reference is then made to the twenty-first section of the second article of the constitution of that state, which provides in respect to contested elections as before stated, and the conclusion is reached, that the legislation thereby enjoined “has in effect the same high sanction,” as though it formed a part of the constitution itself. And that “jurisdiction being thus specially conferred upon other tribunals, and the mode of its exercise prescribed, it cannot be inferred that it was intended by the constitution to be differently exercised by a proceeding in quo wa/rranto, as at common law, or by the supreme court, and district courts, under a more general grant of jurisdiction in quo wa/rrantoP But inasmuch as our constitution contains no similar direction to the legislature, this case, upon which much reliance seemed to be placed, cannot be said to be directly in point. Indeed, even if our constitution were the same as that of Ohio in this respect, still we should hesitate long before adopting the conclusion that a contest under the statute was the exclusive mode of determining, in all cases, between conflicting claimants for an office. We should as at present advised be strongly inclined to hold that the remedy by quo warranto still remained as a concurrent remedy, to be resorted to at the option of the state, or of one claiming an office, against an incumbent wrongfully holding the same. But even if the propriety of the rule as laid down in Ohio under the peculiar provision of the constitution of that state be conceded, still it is very clearly wholly inapplicable here. A due regard for a remedy not only clearly recognized by our constitution, but expressly given by the legislature, forbids that we should lay down any such narrow rule in this state.

Section 3, Art. IV, of the constitution of 1867, declares that “the supreme court shall have api^ellate jurisdiction only, except in cases relating to revenue, mandamus, quo warra/nto, habeas corpus, and such cases of impeachment as may be required to be tried before it; and both the supreme and district courts shall have both chancery and common law jurisdiction.” And quo warranto being a common law remedy, it follows that the courts named in this section have this valuable remedy, as exercised under the common law, secured to them irrevocably, except by a change of the fundamental law. The legislature may doubtless provide other remedies in cases to which this one would be quite appropriate, and also invest other tribunals with jurisdiction to administer them, but they would be'auxiliary merely, and could not take from the supreme and district courts their jurisdiction by quo warranto.

In addition to this constitutional authority given to these courts, and of which the legislature is powerless to deprive them, we have chapter 42 of the Revised Statutes, which would authorize this proceeding, even if the constitution were silent on the subject. Section one pro-provides: “When any citizen of this state shall claim any office which is usurped, invaded, or unlawfully held and exercised by another, the person so claiming snch office shall have the right to file in the district court an information in the nature of a quo warranto,” etc. Gen. Stat., 1873. This shows the entire harmony existing between the constitution and our legislation on this subject, and leaves us in no doubt whatever as to the full and complete jurisdiction of the district court in this case.

TY. The most important question remaining to be disposed of, is that raised by the alleged error in excluding certain testimony from the jury. This election was held under the provisions of the general election law of 1873. There is no dispute as to the entire regularity with which it was conducted, up to the canvass of the returns required to be made by the county cleric and two disinterested electors. In this canvass however there seems to have been a grave and inexcusable error committed. The sealed packages of ballots, returned from the several precincts, were broken open, notwithstanding the statute requires them to be kept by the clerk unopened and uninspected, except for certain specified purposes, and were recounted in utter disregard of the law. Instead of making the abstract as shown by the several poll books, as the statute imperatively requires, and from which alone they have any authority to make one at all, these were entirely disregarded, and a pretended re-count of the ballots made, upon the basis of which the respondent was declared elected, and a certificate to that effect issued to him. It is an undisputed fact that the returns from the judges of -election conformed in every particular to the requirements of the law. There was no reason then, nor has any since been shown, for questioning their entire correctness. And it is admitted that these returns gave the relator a clear majority, over the respondent, of five votes. This being so, it was the plain duty of the board of canvassers so to have declared, and of the clerk to have certified accordingly. There is no doubt that cases may arise wherein it would be the dutj^ of a contest board, or a court, to go behind the poll boohs, and resort to a recount of the ballots. Such course is plainly contemplated in the provision requiring the ballots to be kept securely sealed and uninspected until brought before the tribunal where they are to be used; but it should be resorted to only when the poll boohs are directly attached for fraud or mistake, and their verity put in issue. It is only in such a case that a party has the right to go behind the returns, which the statute declares shall be the evidence upon which the certificate of election shall be issued.

There was no issue presented by the pleadings in this case, justifying the admission of the testimony which the court excluded; and as the case stood under the proofs, the court was justified in directing a verdict in favor of the relator.

Judgment affirmed.  