Miller v. Wheeler , 33 Neb. 765 ( 1892 )

Maxwell, Ch. J.

The plaintiff Miller contests the right of Wheeler to the office of judge of the district court of the fifth judicial district. The plaintiff Crawford contests the right of Norris to the office of judge of the eighth district.

In each of these cases a petition has been filed in this court and the proceedings for contest instituted herein. Each of the defendants demur to the petition of contest upon the ground that the court has no authority as a court of original jurisdiction to hear and determine the cases. As the same question is presented in each of the cases they will be considered together.

Sec. 2, art. 6, of the constitution provides that “The supreme court shall consist of three judges, a majority of whom shall be necessary to form a quorum, or to pronounce a decision. It shall have original jurisdiction in cases relating to the revenue, civil cases in which the state shall be a party, mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as may be provided by law.”

In Bell v. Templin, 26 Neb., 249, an original action was brought in this court to contest the right of a county attorney, and the defendant demurred to the petition for want of jurisdiction. It was held that a county attorney being a county officer the proceedings should be instituted in the county court of the proper county. In that case it is said, “ Where, however, the district comprises a number of counties or the entire state it is necessary to provide a tribunal with wider powers than is possessed by the tribunal spoken of in either section 70 or 71 of chapter 26, Compiled Statutes; hence it is sought to confer this power on the supreme court. The supreme court undoubtedly has power in actions of quo warranto and probably in a proceeding to contest an election in any of the cases mentioned in section 69, chapter 26. The original jurisdiction of the supreme court in judicial proceedings is fixed by sec. 2, art. 6, of the constitution, and is limited to cases relating to the revenue, mandamus, quo warranto, habeas corpus, and cases in which the state shall be a party. The designation of these cases in which the court has original jurisdiction is a direct prohibition of jurisdiction in other cases. The maxim, ‘ Ekcpressio unius est exclusio alterius,’ applies and excludes original jurisdiction in other cases. The supreme court is intended as a court of review, the principal business being a re-examination of the judgments of the district courts. The original jurisdiction is conferred on this court in a limited number of cases to enable the court to protect the rights of parties where other means would seem to be inadequate and to prevent a failure of justice. A tribunal to determine contested elections need not be, strictly speaking, a judicial body, the powers exercised being’ political and administrative. (State v. Oleson, 15 Neb., 247; State v. Saline County, 18 Id., 428.) There is but little doubt, therefore, that the legislature may constitute the supreme court a tribunal to decide contests of election in cases where officers are elected by the entire state, or by a number of counties constituting a district thereof. This question, however, does not arise in this case.

Both of my associates are of the opinion that a contest of election is a judicial proceeding as much so as an action of quo warranto, and that therefore the court has no original jurisdiction, and on mature reflection I think their views are correct. The question did not arise in Bell v. Templin, but the writer having in mind the cases of State v. Oleson, 15 Neb., 247, and State v. Saline County, 18 Id., 428, wherein it was held in substance that a tribunal for the trial and removal of an officer for dereliction of duty-need not strictly be a court, expressed his views as above. A more careful examination of the statute and the constitution, however, convinces the writer that the original jurisdiction of the supreme court is confined to the cases specified in the constitution, and that under another name no additional jurisdiction can be conferred. This is a court the primary object of which is to review cases tried in the district courts. It is an appellate tribunal and it is given original jurisdiction in a few limited cases, most of which are extraordinary remedies for the purpose of preventing a failure of justice. It is argued with considerable force that this proceeding is a branch of the action of quo warranto; in fact is such action in all but in name. It is sufficient to say that it is not an action of quo warranto, and it is unnecessary to point out the differences between the two. It is evident that the court has no original jurisdiction in this class of cases. Neither can the legislature clothe this court with power as a board to hear contest of election cases, as the duties of the court are essentially judicial and cannot be perverted from that purpose. The demurrer must therefore be sustained and the actions

Dismissed without prejudice.

The other judges concur.