State ex rel. Fitch v. McFarland

Hamer, J. This is an appeal from a judgment of the district court for Madison county, awarding the relator a peremptory writ of mandamus to compel the county clerk and the members of the board of canvassers to count the votes cast for him as commissioner of the first commissioner district of said county, at the general election of 1914, and to issue to him a certificate of election to that office. The petition for the writ set forth, in substance, that at the election of 1914 certain electors of the county wrote the relator’s name on their ballots and thus cast their votes for him for that office; that there was no other candidate voted for by the electors of the county, and that therefore the relator was duly elected and was entitled to have the votes cast for him counted, and that he was entitled to a certificate of election. By the return to the alternative writ it was alleged, among other things, that there was no vacancy in the office of commissioner of said district No. 1, in said county, at the election of 1914, and no election was held for that office. The trial court, on the hearing, allowed the peremptory writ, and the respondents have appealed. It appears from the record that one Watson L. Purdy was elected at the general election in 1911 commissioner for the first district of Madison county, for the full term of four years, commencing the first Thursday after the first [200] Tuesday in January of 1912; and at said election the relator and Purdy were rival candidates. In Saling v. Bahensky, 97 Neb. 789, and in Calling v. Gilland, 97 Neb. 788, it was held that in counties, like Madison, which are not under township organization, the term of county commissioner is four years. It follows that there was no election for the office of county commissioner in commissioner district No. 1 in 1914. The writ of mandamus should therefore have been denied. The judgment of the district court is reversed and the relator’s action is dismissed. Reversed and dismissed. Letton, Rose and Sedgwick, JJ., not sitting.