Garrard v. Gallagher

[385] By tlie Court, Hawley, C. J.: At the general election in 1874, the respondent tvas elected to the office of state senator in Esmeralda county. The appellant, pursuant to the provisions of section 52 of the act concerning elections (2 Comp. L. 2555), filed with the clerk of said county a statement contesting the election of respondent. During the session of the legislature, the state senate indefinitely postponed the whole subject-matter relating to said contest. (Journal of the Senate, 1875, 54.) This action is brought to recover the costs expended by respondent in defending said contest and for certain sums of money alleged to be due certain officers who performed service therein at the request of the appellant, their claims having been assigned to res^iondent. The first count in the complaint is for the costs alleged to have been expended by respondent amounting to $223.75. The other counts are for the claims assigned to plaintiff (respondent herein) amounting to $103. The appellant demurred to the first count of the complaint upon the ground that it “does not state facts sufficient to constitute a cause of action.” The demurrer was overruled. Appellant then offered to allow judgment for $1Q3, the amount of the assigned claims, which was declined by respondent. The appellant- refused to file an answer, and judgment was entered, by default, in favor of respondent for the full amount claimed, viz.: $336.75. This appeal is from the judgment. The assignments of error are as follows: “First. Error in law in the overruling of defendant’s demurrer. Second. Error in law in the allowance by the court of any other or greater amount * * * than defendant had offered to allow judgment for.” From this statement it will- be observed that we are only called upon to determine whether .the respondent is entitled to recover the amount included in the first count of the complaint. The contest for members of the legislature can only be made in pursuance of the provisions of the statute concerning elections. (2 Comp. L., 2555-2560, inclusive.) [386] The proceedings are special in their character. In such contests, under our statute, the courts have no jurisdiction. It is a well-settled rule of law that where the statute gives a special remedy it must be followed, and the proceedings thereunder, in contested election cases, are substantially different from any common law remedy. (Dorsey v. Barry, 24 Cal. 449; Casgrave v. Howland, 24 Cal. 457; Keller v. Chapman, 34 Cal. 635; French v. Lighty, 9 Ind. 475; Knox v. Fesler, 17 Ind. 254; State ex rel. Grisell v. Marlow, 15 Ohio St. 114; Peck v. Weddell, 17 Ohio St. 271; O'Docherty v. Archer, 9 Tex. 295; Wright v. Fawcett, 42 Tex. 203; Rogers v. Johns, 42 Tex. 339; Commonwealth ex rel. McCurdy v. Leech, 44 Penn. St. 332; Selleck v. Common Council of South Norwalk, 40 Conn. 359.) In special proceedings costs will not be allowed, except by legislative action. (State v. Kinne, 41 N. H. 238; Metler v. Easton and Amboy Railroad Co., 37 N. J. L. 223.) Nor will fees be given to the officers, by the courts, unless specially provided for by the statute. (Town of Carlyle v. Sharp, 51 Ill. 71; Crittenden County v. Crump, 25 Ark. 235.) It is expressly provided by section 45 that in a contest in the district court in relation to any county office: “The clerk, sheriff and witnesses, shall receive, respectively, the same fees from the party against whom the judgment is given as are allowed for similar services in the district court.” (2 Comp. L. 2548.) And where such contests are made in the courts it has been held that a citizen by instituting a suit becomes a party, and is responsible for costs if he fails. (Searcy v. Grow, 15 Cal. 122.) Put there is no provision made for the fees of any officer or witnesses, or costs expended, in a contest for members of the legislature. In such cases the remedy of the parties, under the statutes of this state, is left entirely to the discretion of the legislature, and to that tribunal, instead of the courts, the respondent, if he has been damaged, must apply fox-relief. The judgment appealed from is reversed, and the disti-ict court directed to enter a judgment in favor of respondent for oxxe lxuxxdred and three dollars, without costs; and also [387] a judgment in favor of appellant for his costs of suit subsequent'to his offer to allow judgment, including the costs of this appeal.