Solomon v. Fleming.

residents, electors, and taxpayers of said county, remonstrated against such action on the ground, among others, that since Culbertson had at the election mentioned received more than three-fifths of all the votes cast, there was no authority for the calling of a second election within five years from the date of the first. On the overruling of their remonstrance by the county commissioners the plaintiffs brought this action for the purpose of enjoining the calling of said election. A temporary injunction was allowed, but on the final hearing the district court entered judgment for the defendants and dismissed plaintiffs' petition, from which judgment they appeal.

Plaintiffs contend that the statute, article 3, chapter 17, Compiled Statutes, does not authorize a relocation of the county seat in this instance within five years following the 16th day of November, 1886; while the contention of the defendants is that inasmuch as Culbertson, which received three-fifths of all the votes cast at that election, was at said time the county seat, the question may be again submitted at any time after the expiration of two years next following said date.

It is provided by section 2 of the act in question, that in case no one place has received three-fifths of the votes cast at the first election, and if it further appear that threefifths of all the votes cast shall be for places other than the county seat, it shall be the duty of the board to call a second election. If the county seat receives more than two-fifths of the votes, there is no authority for a second election. In case a second election is authorized by the result of the first, then by section 3 the voters are restricted to a choice between three places, viz., the present county seat and the two places other than the county seat which at the preceding election received the greatest number of votes. By section 4 it is provided that if three-fifths of the votes so cast (at the second election) shall be in favor of relocating the county seat at either of the three places

Solomon v. Fleming.

voted for (viz., the county seat and the two places other than the county seat having the greatest number of votes at the first election), such place shall become and remain the county seat, etc.

Section 8 provides as follows: "If, at either of the elections in this act provided for, more than two-fifths of the votes cast shall be in favor of the place where the county seat is then located, the question of the relocation thereof shall not be again submitted for the space of two years from the date of said election, and in case the county seat shall be relocated as herein provided for, the question of the relocation thereof shall not be again submitted to the electors for the space of five years thereafter."

Our conclusion from the several sections of the act is that if at any of the elections provided for therein the county seat shall receive more than two-fifths and less than three-fifths of the votes cast, the question of relocation may be again submitted at any time after the expiration of two years next following. But should any one of the several places, including the county seat, receive three-fifths of all the votes cast-that is to say, if the county seat should be relocated-the question cannot be again submitted until the expiration of five years next following. It follows, therefore, that there was no authority for the calling of an election to relocate the county seat at the time in question, to-wit, July 17, 1889.

It is further contended that plaintiffs are not shown to have such an interest in the subject-matter as will entitle them to maintain the action. It is admitted that plaintiffs are resident elec:ors and taxpayers of Hitchcock county; that a taxpayer may interpose by means of an injunction to prevent the waste of public funds, is a proposition generally recognized in equity jurisprudence and has been repeatedly asserted by this court. (Normand v. Otoe Co., 8 Neb., 18.) We are bound to take notice that the relocation of a county seat, necessarily involving one, and pos

Anglo-American Provision Co. v. Evans.

sibly two or more elections, will impose no inconsiderable burden upon the people in the way of taxation. Since the county board were acting without authority of law in calling the election, we can see no reason why a complaining taxpayer should remain idle until the election had been held and the rights of innocent parties intervened. The remedy by contest provided by statute, section 64, chapter 26, Compiled Statutes, is not exclusive. (State v. Stearns, 11 Neb., 104; State v. Frazier, 28 Id., 438.) In the first named case it was held that a writ of mandamus would issue on the application of a resident of the county to compel the canvassing board to count certain votes rejected by them, which had been cast at an election called for the purpose of relocating a county seat. The reasoning of the present chief justice in that case applies with equal force to this. The judgment of the district court will be reversed and judgment entered in this court for the plaintiffs in accordance with the prayer of this petition.

REVERSED.

THE other judges concur.

ANGLO-AMERICAN PROVISION Co. V. JOHN T. EVANS.

[FILED FEBRUARY 24, 1892.]

1. Removal of Causes: TRIAL: COMMENCEMENT. Where a jury is called into the box and the jurors examined on their voir dire and accepted but not sworn, it is the commencement of a trial under the Code, and it is too late thereafter to seek to remove a cause into the United States court.

2.

-: FAILURE TO SHOW GROUNDS.

Where there is no copy

of the petition, on which an order of removal by a federal court is made, presented to the trial court, and the order itself fails to

Anglo American Provision Co. v. Evans.

show any ground therefor, the district court is not required to surrender its jurisdiction, but may proceed with the trial of the

cause.

3. Affidavit for bondsmen examined, and held, to be insufficient.

ERROR to the district court for Douglas county. Tried below before DOANE, J.

Hall & McCulloch, for plaintiff in error, cited: Curtis v. Culter, 7 Neb., 315; Maxwell, Pl. & Pr., 172; Yulee v. Vose, 99 U. S. Sup. Ct. Rep., 545.

Parke Godwin, contra, cited: Thurman v. Stevens, 2 Duer [N. Y.], 609; Osborne v. Endicott, 6 Cal., 149; Gardner v. Armstrong, 31 Mo., 535; Sherwood v. Saxton, 63 Id., 78; Duffy v. O'Donovan, 46 N. Y., 223; Cresswell v. McCaig, 11 Neb., 222; Cahill v. Bigelow, 18 Pick. [Mass.], 369; Lefferson v. Dallas, 20 O. St., 74; Removal Cases, 100 U. S., 457; Carson v. Holtzclaw, 39 Fed. Rep. [Mo.], 578; Malone v. R. Co., 35 Fed. Rep. [N. Car.], 625; Amy v. Manning, 38 Fed. Rep. [N. Y.], 868; Short v. R. Co., 34 Fed. Rep. [Minn.], 225; Delbanco v. Singletary, 40 Fed. Rep. [Nev.], 177; Dennison v. Brown, 38 Fed. Rep. [N. Y.], 535; Menard v. Goggan, 121 U. S., 253; Stevens v. Nichols, 9 Sup. Ct. Rep., 518; Young v. Ewart, 10 Id., 75; Duff v. Duff, 31 Fed. Rep. [Cal.], 772; Shedd v. Fuller, 36 Fed. Rep. [Ill.], 609; Gregory v. Hartley, 113 U. S., 742; Dunn v. R. Co., 27 N. W. Rep. [Minn.], 448; Vannevar v. Bryant, 21 Wall. [U. S.], 41; Jifkins v. Sweetzer, 102 U. S., 177; Yulee v. Vose, 99 Id., 545.

MAXWELL, CH. J.

This action was brought by the defendant in error upon a cause of action as follows:

"That on the 14th day of June, 1887, the plaintiff en

Anglo-American Provision Co. v. Evans.

tered into the defendant's employ for the term of one year from said date as its chief book-keeper and accountant; and the defendant, in consideration thereof, then agreed to employ the plaintiff at the agreed price of $2,000 per

annum.

"Second-That plaintiff continued in said employ until the 31st day of August, 1887, when, although the plaintiff was ready and willing to remain in the same for the remainder of said term, the defendant refused to suffer plaintiff to continue in its employ, and discharged the plaintiff therefrom without any reasonable cause whatever, and has thence hitherto refused to employ the plaintiff for the remainder of said term.

"Third-That the plaintiff has thereby lost the wages which he otherwise would have obtained from said employ, and which the defendant refused to pay him, and plaintiff has since been unable to obtain other steady employment; has been, by reason of said contract, deprived of other valuable employment; and by the breach thereof by defendant has been brought into public suspicion and distrust, to plaintiff's damage in the sum of $5,000."

To this petition the defendant filed an answer, as follows: "Now comes the said defendant, and for answer to the petition of the said plaintiff, says: Said defendant denies each and every allegation in said petition contained, save and except such as are in this answer expressly admitted. Said defendant admits that it employed said plaintiff to work for it, but only temporarily, and at defendant's pleasure, but not in the capacity in said petition stated, nor for the salary in said petition set out. The defendant avers that it had the right at its pleasure to dismiss said plaintiff. And it avers that said plaintiff did not perform his duties properly, nor was plaintiff of such character as to justify defendant in retaining him."

*

*

It will be observed that the statute of frauds is not pleaded by the defendant below.