State ex rel. Wood v. Marsh

Goss, C. J. This is the second of a series of election cases arising on account of protested filings in the office of the secretary of state in relation to the primary election to be held August 12, 1930. This involves the filing of John Curtis of Omaha for the office of railway commissioner. The filing was not actually received and filed until after July 3, 1930, which was the last day allowed by the terms of the statute. The secretary of state allowed the filing and overruled a protest duly made against it, whereupon this special proceeding was brought by virtue of section 2119, Comp. St. 1922, as amended by section 3, ch. 108, Laws 1925, now known as section 32-1129, Comp. St. 1929. In the meantime the case of State v. Marsh, ante, p. 287, had been heard and decided by the writer of this opinion. So the secretary of state decided to reverse this judgment in this and all similar cases, but relator was unwilling to take chances on the applicant applying to a court even if such action should be taken by respondent. Thereupon the respondent defaulted and the relator made strict proof of the facts alleged. The [297] evidence shows that the filing was made too late under the statute and should not have been allowed. The case is governed by the rules laid down in State v. Marsh, above referred to. At the conclusion of the hearing it was ordered that the respondent omit the name of John Curtis of Omaha from the certified list of candidates for railway commissioner. The order was proper.