
    State of Nebraska, ex rel. George Hocknell, v. George W. Roper et al.
    Filed January 9, 1896.
    No. 7387.
    1. Relocation of County Seat: Elections:' Fraud: Mandamus. On an application for a mandamus to compel the removal of a county seat in pursuance of the declared result of a canvass of the vote on the question of relocation, the court cannot go behind the returns and investigate issues of fraud and illegality in the manner of conducting the election.
    2. -: -: -: Pleading. An answer in such a case tendering such issues presents no defense.
    3. -: -: Mandamus. In an appropriate case the court will by mandamus enforce the prima facie right established by the canvass, but it will not determine the ultimate right.
    Rehearing of original application for mandamus to compel the county officers of Red Willow county to remove their offices from Indianola to McCook. For former opinion, see 46 Neb., 724. Heard on motion of relator to strike out portions of the answers. The issues are stated by the commissioner.
    
      Motion sustained.
    
    
      J. W. Deweese, A. J. Rittenhouse, and W. S. Morían, for relator: .
    The material matters set forth in the answers which the relator has moved to strike out involve the decisión of a political question, and may not be tried in a court upon which jurisdiction has not been conferred by the legislature. (Wright v. Fawcett, 42 Tex., 203; Parmeter v. Bourne, 35 Pac. Rep. [Wash.], 586; State v. Dortch, 41 La. Ann., 846; State v. Police Jury, 43 La. Ann., 1009; Reynolds & Henry Construction Co. v. Police Jury, 44 La. Ann., 863; Dickey v. Reed, 78 Ill., 261.)
    
      The supreme court has uo original jurisdiction in election cases. (Miller v. Wheeler and Crawford v. Norris, 33 Neb., 765; Bell v. Tamplin, 26 Neb., 249; Scott v. McGuire, 15 Neb., 305.)
    An election cannot be contested in a mandamus proceeding, and in such a case the court will not go behind the returns and inquire into the legality of the votes cast. (Cameron v. Parker, 38 Pac. Rep. [Okla.], 14; State v. Dodson, 21 Neb., 218; State v. Jaynes, 19 Neb., 161; Houston v. Steele, 28 S. W. Rep. [Ky.], 662; State v. Nemaha County, 10 Neb., 32; State v. Powell, 10 Neb., 48; McGee v. State, 32 Neb., 149; State v. Palmer, 10 Neb., 203; Anderson v. Colson, 1 Neb., 172; State v. Plambeck, 36 Neb., 404; Hagge v. State, 10 Neb., 51; State v. Stearns, 11 Neb., 106; State v. Peacock, 15 Neb., 442; State v. Wilson, 24 Neb., 139; State v. Elder, 31 Neb., 169.)
    The intervenors had another adequate remedy at law, and therefore cannot try in this action the material matters moved to be stricken out of their answers, in mandamus proceedings. (Anderson v. Colson, 1 Neb., 172; State v.McCrillus, 4 Kan., 250; Eyke v. Lange, 63 N. W. Rep. [Mich.], 535; Ex parte Heath, 3 Hill [N. Y.], 42; Commissioners of Yorktown v. People, 66 Ill., 339; Excelsior Mutual Aid Association v. Riddle, 91 Ind., 84.)
    The district court had original jurisdiction to try the contest of the county seat election. (Scott v, McGuire, 15 Neb., 305; Burke v. Perry, 26 Neb., 414; Ayers v. Moan, 34 Neb., 210; Crews v. Coffman, 36 Neb., 824; Gibson v. Trinity County, 22 Pac. Rep. [Cal.], 225; Albert v. Twohig, 35 Neb., 568; Biggs v. McBride, 21 Pac. Rep. [Ore.], 878; Packard v. Richardson, 17 Mass., 143; Curtis v. Leavitt, 15 N. Y., 217; People v. Fitch, 1 Cal., 523.) .
    Where the statute prescribes a specific and adequate remedy, this must be pursued to the exclusion of all other remedies. (State v. Stewart, 26 O. St., 216.)
    
      
      S. JR. Smith, W. R. Starr, H. W. Keyes, and Reese & GilJceson, contra:
    
    In answering to the merits the relator waived his right to be heard upon the motion. (Code of Civil Procedure, sec. 92; Bell v. Sherer, 12 Neb., 411; Moore v. Glover, 16 N. E. Rep. [Ind.], 163; Ludlow v. Ludlow, 9 N. E. Rep. [Ind.], 769.)
    Statutes providing for contests of election, unless clearly exclusive, are only cumulative remedies. (High, Extraordinary Remedies, sec. 624; McCrary, Elections, sec. 334.)
    Before a writ of mandamus will issue the court has a right to inquire into every fact necessary to determine whether or not the relator is entitled to the relief prayed for, and to that end may go behind the certificate and returns. (State v. Barber, 32 Pac. Rep. [Wyo.], 14; People v. Rice, 129 N. Y., 390.)
    The election of a person to an office who does not possess the requisite qualifications, gives him no right to hold the office or to claim a certificate of election, and the court will go behind the returns and hear evidence upon issue joined. (State v. Albín, 44 Mo., 346; State v. Stevens, 23 Kan., 456; State v. Newman, 91 Mo., 445; State v. Williams, 99 Mo., 291; State v. McGregor, 44 O. St., 628; State v. Lesueur, 103 Mo., 253; Sherburne v. Horn, 45 Mich., 160 )
    The legality of the election of relator may be tested in mandamus proceedings. (Kimball v. Lamprey, 19 N. H., 215; Walter v. Belding, 24 Vt., 658; Burr v. Norton, 25 Conn., 103.)
    On a petition for mandamus to compel a county clerk to remove his records to a place claimed to have been designated as the permanent county seat, the facts stated in the petition are traversable, and a peremptory writ should not issue. Where fraud and corruption are set up and alleged in the answers of the respondents, the court should permit the same to be proved. (State v. Avery, 14 Wis., 133; State 
      
      v. Grace, 25 Pac. Rep. [Ore.], 382; State v. Thatch, 5 Neb., 94; State v. Mar stem,- 6 Kan., 524; State v. Stevens, 23 Kan., 456; People v. Jones, 20 Cal., 50; Keough v. Board of Aldermen of Holyoke, 31 N. E. Rep. [Mass.], 387; Hunter v. State, 14 Neb., 506; Boren v. Smith, 47 Ill., 482; State v. Hamilton County, 35 Kan., 640; McWhirter v. Brainard, 5 Ore., 426; Calaveras County v. Brockway, 30 Cal., 326; State v. Saxton, 11 Wis., 25; State v. Larrabee, 1 Wis., 178; Attorney General v. Fitzpatrick, 2 Wis., 397; State v. Lean, 9 Wis., 254; State v. Fetter, 12 Wis., 632.)
    Where the record shows an honest dispute as to a material fact, the writ should not issue. (People v. Board of Police of City of New York, 13 N. E. Rep. [N. Y.], 920; State v. Washington County, 2 Chand. [Wis.], 250; Free Press Association v. Nichols, 45 Vt., 7; People v. Salomon, 46 Ill., 419; People v. Mayor of Chicago, 51 Ill., 28; Commissioners of Yorktown v. People, 66 111., 339; Springfield & L. S. JR. Co. v. Wayne County, 74 Ill., 27; People v. Trustees of Schools, 86 Ill., 613 ; People v. Town of Old-town, 88 Ill., 202; State v. New Haven & North Hampton Co., 45 Conn., 331; State Board of Education v. City of West Point, 50 Miss., 638 ; Sabine v. Pounds, 50 Vt., 74; Cook v. Town of Peacham, 50 Vt., 231; Tyler v. Taylor, 29 Gratt. [Va.], 765; Townes v. Nichols, 73 Me., 515; People v. Auditor General, 36 Mich., 271.)
    Where an officer has been illegally elected, mandamus will not issue to aid him in getting possession of the office. (Collins v. State, 8 Ind., 344; Gulick v. New, 14 Ind., 93.)
    
      Sidney Dodge, also for respondents.
   Irvine, C.

This is the same case which was before the court some months ago and in which an opinion was filed denying the writ prayed for. (State v. Roper, 46 Neb., 724.) The decision was based upon the ground that the application did not show that the relator was entitled to the relief sought. A rehearing was allowed on relator’s motion. .Certain petitions of intervention, accompanied by answers, were filed, and the case is now presented on the motion of the relator to strike out portions of these answers. The former opinion discloses the material allegations of the application. The intervenors are certain county officers not named as respondents in the application, and certain citizens, electors and taxpayers of Eed Willow county, who allege that as such they are interested in the retention of the county seat at Indianola. The answers are substantially alike. They admit the calling of the election and the facts rendering the call legal; admit that the only places voted for were McCook and Indianola; admit the institution in the district court of a contest of the election and an appeal to the supreme court, and allege that the supreme court dismissed the whole ease for want of jurisdiction in either court, and admit the official capacity of the original respondents. The other allegations are denied. The intervenors further allege that the total number of votes, legal and illegal, was 2,237, of which there were but 1,339 for McCook, being less than three-fifths of the whole number of votes cast. So far the answers are not attacked. The motion goes, however, to all the rest of the answers, the allegations of which are, in brief, as follows: That the county owns land and a commodious court house and jail in Indianola, and no buildings or other property at McCook; that Indianola has a more convenient geographical location, and that a majority of the citizens and electors do not desire the removal of the county seat. These allegations must clearly be stricken out. If the requisite number of voters at a valid election expressed themselves in favor of removal, it is clear that a removal cannot be defeated in subsequent judicial proceedings on the ground last stated. The question before the .court cannot go farther than the ascertainment of the legal expression of the electors’ desires M'hen the.election was held. It cannot extend to matters of convenience and present wish ■ of the electors. Further, the intervenors charge that McCook was a city of more than 2,500 inhabitants, and that there was no registration of the voters therein; that a large number of illegal votes for McCook were cast in certain precincts; that the relators and others offered rewards and bribes for votes for McCook in the way of pledges of money and land for a court house; that certain voters were bribed to vote for McCook; that void ballots were counted for McCook, and that challengers were wrongfully kept from the polls. The motion to strike out these allegations presents the question whether in an application for a mandamus of this character the court may go behind the returns and inquire.into the legality of the election.

In an early case in this court (Anderson v. Colson, 1 Neb., 172) there was an application to compel a county treasurer , to pay over to the relator, who claimed to have been elected school district treasurer, moneys to which the school board was entitled. The answer alleged facts in contravention of the legality of the relator’s election. The case was heard on these pleadings. This court held that the pleadings disclosed that there was a.dispute as to the right to the office; that such a question could not be tried on an application for a mandamus, and, therefore, dismissed the petition. State v. Thatch, 5 Neb., 94, was an application similar to this. The answer alleged in general terms and upon information and belief that the election was fraudulent and illegal. The court held that the answer, by failing to state the facts on which the charge of fraud was based, was insufficient, and therefore awarded the writ, adding obiter, that if it were made to appear clearly that a sufficient number of illegal votes had been cast in favor of the successful town to give it a majority, this would be sufficient cause for the court to refuse its aid. In view of the decision in Anderson v. Colson, swpra, we take it, that what was in the mind of the court was .that if a sufficient answer of such a character was filed, the court would not try the issues in the mandamus case but would pursue the course adopted in Anderson v. Colson, dismiss the case, and leave the parties to appropriate proceedings to determine the validity of the election.

In People v. Hamilton County, 3 Neb., 244, the application was similar to that before us, and the writ was denied because no sufficient notice had been given of the election. The effect of the decision is that the requirement of a notice of elections of this character is mandatory, and without such a notice the election is absolutely void. The question then being not whether the election had been fairly and legally conducted, but whether there had been any election. This case is not in point. Hunter v. State, 14 Neb., 506, was a similar application. It does not appear what the answer was. The court reaffirmed State v. Thatch, supra, as to the requirements of such an answer, and then decided that the introduction in evidence of a petition for an injunction to restrain the officers from removing the county seat proved only the fact of the pendency of such an action, and did not prove the facts alleged in the petition for the injunction. Beyond this, expressions in the opinion are entirely obiter. Scott v. McGuire, 15 Neb., 303, was the injunction case referred to in Hunter 'v. State. The court held that an injunction would not be granted to restrain the removal of a county seat on allegations attacking the legality of the conduct of the election.

It has a number of times been held that a canvassing board has no authority to go behind the returns ; that its duty is to canvass the vote as returned to it, and that, therefore, mandamus will lie to compel a canvass in accordance with the face of the returns. (Hagge v. State, 10 Neb., 51; State v. Stearns, 11 Neb., 104; State v. Peacock, 15 Neb., 442; State v. Wilson, 24 Neb., 139; State v. McFadden, 46 Neb., 668.) State v. Jaynes, 19 Neb., 161, was an application for a mandamus to compel the respond•ent to turn over to the; relator, books and papers belonging to the office of justice of the peace to which relator claimed he was elected. The respondent denied that the relator had been elected, although he had received a cértificate of election, and alleged that illegal and fraudulent votes had been counted, by which the relator had been'declared elected. The court held that in an application, for a mandamus it would not go behind the certificate of election and try the relator’s title, but would issue the writ in accordance with the certificate. This doctrine was reaffirmed in State v. Dodson, 21 Neb., 218, and though the nature of the cases was somewhat different in State v: Van Camp, 36 Neb., 91, and in State v. Plambeck, 36 Neb.; 401.

From a review of the cases we therefore find that the court has steadfastly refused on application for a mandamus to inquire into the regularity of an election and into the correctness of the action of the election officers. It has never tried, but has always refused to try, issues of fraud and illegal voting. In the earlier cases it held that presenting such an issue was a sufficient reason for refusing the writ, without trying the issues, until the validity of the election should be determined in a proper action. Later, the ground was taken that a canvassing board must canvass the returns and declare the result according to the face of the returns; and this led logically to the conclusion reached in all cases since 1886, that an answer alleging fraud and illegality in the manner of conducting the election sets up no defense, thus in effect overruling the earlier cases, not so far as they held that such issues would not be tried in the mandamus case, but in so far as they held that presenting such issues was a defense to the action. We conceive that the later, and undoubtedly the correct position is that a canvassing board must proceed according to the face of the returns, and that the court will give its aid through a writ of mandamus to the person entitled under such a canvass, either to secure his certificate or to secure the office in pursuance thereof, not as a final determination of the right, but to give effect to the result of the canvass as establishing a prima facie right. This must hold true as well in regard to the choice of a county seat as-to the choice of an officer.

It is argued that in Thomas v. Franklin, 42 Neb., 310,. this court held that no jurisdiction was obtained of contest proceedings in regard to this very election; that no contest being permissible, the respondents are without a remedy unless they can obtain it in this action, and that the usual remedy not being applicable, the merits of the election can be inquired into in this case. Assuming the premises to-be correct, we would not at this time commit ourselves to-the correctness of the conclusion. Some courts of very high authority have held that in such a case inquiry may be made into the issues presented by these answers. On the contrary, there are many cases emanating from courts to whose decisions we owe equal deference, to the effect that a proceeding which is in its nature, whatever may be its form, the contest of an election, is one political or administrative in its character, and not the subject of judicial cognizance unless made so by express statute; that, therefore, where there is no statute authorizing a judicial inquiry into the validity of an election, no such inquiry can be made in any proceeding, and this view is not without some inferential support from this court. (Miller v. Wheeler, 33 Neb., 765; State v. Oleson, 15 Neb., 247; State v. Saline County, 18 Neb., 422.) But the question thus presented it is not necessary to here decide. The statutes expressly provide (Compiled Statutes, ch. 26, sec. 64) that an election for the location or relocation of a county seat may be contested, and we did not in Thomas v. Franklin decide either that this statute was unconstitutional or that it was inoperative for failure to provide a method of contest.' ■ What we there decided was that an elector, as such, in his own individual name and behalf could not maintain. such a proceeding. The court did not undertake to decide how such a proceeding should be brought, because that question was not presented. The court held that Thomas, as an elector, by himself and in his own behalf, could not maintain it but it does not follow from that holding that no contest could have been had by proper proceedings. Therefore, assuming that the question is a judicial one,, and that fraud arid illegality in an election present a case where the courts must in some manner of action afford a remedy, it does not follow that it may be by mandamus, and every adjudication is against such a view.

The motion to strike was filed July 19,1895. On July 22 the relator filed what is styled an answer to the petition of the intervenors. It is now claimed that having answered, the motion cannot be considered. On June 22 the court had made an order requiring the relator to answer the petition of the intervenors within thirty days. The court, after making this order, almost immediately adjourned sine-die. The answer, protesting that the petitions are irrelevant, is expressly made because of the court’s order. Ordinarily, filing an answer to a petition waives any defect which can be raised only by motion, but in view of the-fact that the court here in terms required such an answer, of the further fact that a consideration of the motion avoids the unnecessary delay and expense which would be-caused by taking a large volume of testimony on the irrelevant issues, and still further, because the pleading filed by the relator was an answer to the petition of intervention,, and not a reply to the answers of the intervenors which the motion attacks, we have deemed a decision upon the-merits of the motion proper. It follows from what has-been said that the motion'is sustained.

Motion sustained.  