Allen v. Levens

BURNETT, C. J. 1. Treating of the contest of election in such cases, it is laid down in Section 7334, Or. L.: “The court having jurisdiction shall speedily try such contests and determine, upon the hearing, whether the election was fairly conducted, and in substantial compliance with the requirements of this act, and enter its judgment accordingly. Such contest must be brought within sixty days after the canvass [468] of the vote and declaration of the result. The right of appeal is hereby given to either party to the record within thirty days after the entry of judgment.” It is said in Tazwell v. Davis, 64 Or. 325, 341 (130 Pac. 400), by Mr. Justice Bean, delivering judgment: ‘ t pipg right of appeal from the decisions of inferior courts in election cases does not exist unless it has been conferred by some constitutional or statutory provision: City of Portland v. Nottingham, 58 Or. 1 (113 Pac. 28). Statutes authorizing appeals to be taken from judgments rendered in civil cases do not apply to contested election proceedings under the statute, as they are not civil cases”: Citing authorities. We may derive from this language the doctrine that the statute under which this contest is conducted is complete within itself and that, being sui generis, the party desiring to avail himself of an appeal under its terms must comply therewith and serve his notice of appeal within thirty days after the entry of the judgment. If this is not done strictly in compliance with the statute, this court has no jurisdiction to decide the cause on the issues presented in the court below. In Livesly v. London, 69 Or. 275 (138 Pac. 853), Mr. Justice Ramsey distinguished between the ordinary suit or action, and proceedings under an election contest, holding that the latter are peculiar to themselves and are governed exclusively by the statute creating them, and finally decided that there is no right of appeal except when it is conferred by statute. The doctrine is thus succinctly stated in Donart v. Stewart, 63 Or. 76, 82 (126 Pac. 608): “An appeal is a right conferred by statute upon Superior Courts to review the- final determinations of [469] inferior judicial tribunals, when causes tried therein are properly brought up for that purpose, and in the transfer of such proceedings the mode prescribed in the enactment granting the privilege is the measure of the, bestowed power in the exercise of which neither court nor party can restrict, enlarge, or diminish the authority given.” At the very threshold of our investigation we are halted by this principle, and any treatment we should give the questions suggested by the pleadings would be mere obiter dictum, having no force or effect, because we have no jurisdiction. The consequence is, that the judgment of the court below cannot be disturbed. It must stand as affirmed. Affirmed. Mr. Justice Brown took no part in the consideration of this case.