in the district, naming the points on which the election shall be contested, and the name of some person authorized by law to administer oaths, selected by him to take the depositions, and the time and place for the taking of the same; the adverse party may also select one such person on his part to attend at the time and place of taking such depositions.

SEC. 73. [Notice.]-The notice provided for in the preceding section shall be served at least ten days before the day fixed for the taking of depositions. The said two persons selected as aforesaid to take the depositions, shall proceed jointly, or in default of either one of such persons to attend at the time and place fixed upon, the one attending shall proceed to hear and reduce to writing the testimony of all witnesses who may be produced by either of said parties, and may adjourn from day to day until all said testimony shall have been taken and reduced to writing; Provided, That such testimony shall be finally closed on or before the 29th of December following.

SEC. 74. [Testimony sealed and sent to secretary of state.]—No testimony shall be received by the person officiating at the taking of the depositions on the part of the contestant which does not relate to the points specified in the notice, a copy of which notice shall be delivered to the person or persons so officiating, and said testimony, together with a copy of the notice, when taken, shall be certified by the person or persons before whom the same is taken, enveloped, sealed up, endorsed "depositions taken in the matter of the contest of the election of A. B., to the office of " and directed to the secretary of state, who

shall preserve the same, unopened, till the meeting of the legislature.

SEC. 75. [Ballots, etc., to be transmitted.]-If, at the time of taking depositions to be used before the legislature, or either branch thereof, in the case of a contested election, the notice shall allege that it is necessary for the determination of such contest that the ballots or the poll books of any election district or districts should be inspected, the officer or officers before whom such depositions shall be taken shall, on the request of either party to the contest, issue an order requiring the county clerk, or other person in whose custody or possession the ballots or poll books may be, naming the district or districts mentioned in the notice, to deliver them to the person or persons therein named, who shall deliver them to the person or persons issuing such order. Such officer or officers shall transmit such ballots or poll books, unopened, in the same envelope with the depositions as provided in the preceding section.

SEC. 76. [Papers delivered to presiding officers of senate and house.]-On the second day of the organization of the legislature, the secretary of state shall deliver to the speaker of [the] house all papers relating to contested elections of executive officers, and to the presiding officers of each house all papers relating to contested elections of the members of their respective houses.

SEC. 77. [Meeting of houses.]-Upon the reception by such presiding officers of papers relating to contested elections, they shall immediately give notice to their respective houses that such papers are in their possession. Where the papers relate to the contest of any executive state officer, the house of representatives shall notify the senate, and a day shall be fixed by both houses by concurrent resolution for the uniting of the two houses to decide upon the same, in which decision the yeas and nays shall be taken and entered upon the journal.

SEC. 78. [Opening papers.]-The papers relating to any such contest shall be opened only in the presence of the body by the presiding officer to whom the same shall be delivered. If ballots or poll books are contained therein, they shall, after being opened, remain in the custody of such presiding officer, subject to the inspection of the members, unless they shall by vote be temporarily committed to the chairman of a committee, in which case such chairman shall return them to the proper presiding officer; and they shall, upon the decision of the contest, be again sealed up in an envelope and returned by mail or otherwise to the office of the county clerk in which they were first required to be filed.

SEC. 79. [Evidence preserved.]-All the evidence in any contest pro

vided for in the last preceding section, except ballots or poll books, shall, after a decision thereof, be preserved in the office of the secretary of state.

SEC. 80. [Contests relative to other officers.]-The election of any person declared elected to any office other than executive state officers and members of the legislature may be contested by any elector of the state, judicial district, county, township, precinct, city, or incorporated village in and for which the person is declared elected.

SEC. 81. [Complaint.]—The contestant shall file in the proper court, within twenty days after the votes are canvassed, a complaint, setting forth the name of the contestant, and that he is an elector competent to contest such election, the name of the incumbent, the office contested, the time of the election, and the particular causes of contest, which complaint shall be verified by the affidavit of the contestant, that the causes set forth are true as he verily believes. The contestant must also file a bond, with security to be approved by the clerk of the court, or county judge, as the case may be, conditioned to pay all costs in case the election be confirmed, the complaint dismissed, or the prosecution fail.

SEC. 82. [Contents of complaint.]—When the reception of illegal or the rejection of legal votes is alleged as a cause of contest, the names of the persons who so voted, or whose votes were rejected, if known, with the precinct, township, or ward where they voted or offered to vote, shall be set forth in the complaint.

SEC. 83. [Summons.]-Upon the filing of such complaint, summons shall issue against the person whose office is contested, in the same manner as in civil actions, and a copy of the complaint shall in all cases accompany the summons.

SEC. 84. [Trial.]-The cause shall stand for trial at the expiration of thirty days from the time of service of the summons and complaint, if the court shall then be in session; otherwise, on the first day of the next term thereafter.

SEC. 85. [Same.]-The trial shall proceed at the time appointed unless postponed for good cause shown by affidavit, the terms of which postponement are in the discretion of the court.

SEC. 86. [Proceedings.]-The proceedings shall be assimilated to those in an action, so far as practicable, but shall be under the control and direction of the court, which shall have all the powers necessary to the right hearing and determination of the matter, to compel the attendance of witnesses, swear them and direct their examination; to punish for contempt in its presence or by disobedience to its lawful mandate, to adjourn from day to day, to make any order concerning immediate costs, and to enforce its orders by attachment. It shall be governed by the rules of law and evidence applicable to the case.

SEC. 87. [Testimony.]-The testimony may be oral, or by depositions taken as in other actions in the court where the cause is tried. Subpoenas for witnesses may be issued as in other cases, any time after the filing of the complaint.

SEC. 88. [Amendments.]-The proceedings shall not be dismissed for want of form, if the particular causes of contest are alleged with such certainty as will sufficiently advise the incumbent of the real grounds of contest. If any part of the causes are held insufficient, they may be amended, but the incumbent will be entitled to an adjournment if he state on oath that he has matter of answer to the amended causes, for the preparation of which he needs further time. Such adjournment shall be upon such terms as the court deem reasonable; but if all the causes are held insufficient, and an amendment is asked, the adjournment shall be at the cost of the contestant. If no amendment is asked for or made, or in case of entire failure to prosecute, the proceedings may be dismissed.

SEC. 89. [Process-Fees.]-The style, form, and manner of service of process and papers, and the fees of officers and witnesses shall be the same as in other cases in the court where the cause is tried.

SEC. 90. [Compelling witness to testify.]-The court may require any person called as a witness who voted at such election, to answer touching his

SEC. 80. The remedy by contest is not exclusive. 10 Neb. 63. Mandamus will lie to compel canvassers to count votes according to face of returns. State v. Stearns, 11 Neb. 104.

qualifications as a voter; and if he was not a qualified voter in the county where he voted, then to answer for whom he voted; and if the witness answer such questions, no part of his testimony on that trial shall be used against him in any criminal action.

SEC. 91. [Inspection of ballots by court.]-If an inspection of the ballots or poll books of any election district in this state shali become necessary for the determination of any election contest before any court, the presiding judge thereof may by order, naming the district or districts, require the proper officer to procure the same from the county clerk, or other person in whose possession or custody the same may be, and such clerk or person shall deliver the same to said officer, who shall deliver them unopened to such presiding judge.

SEC. 92. [Same.-The presiding judge shall open and inspect the same in open court, in the presence of the parties or their attorneys, and immediately after such inspection shall again seal them in an envelope and return them by mail or otherwise to the office of the county clerk in which they were at first required to be bied.

SEC. 93. [Costs.-The contestant and the incumbent are liable to the officers and witnesses for the costs made by them respectively. But if the election be confirmed, or the complaint be dismissed, or the prosecution fail, judgment shall be rendered against the contestant for costs; and if the judgment be against the incumbent, or the election be set aside, it shail be against him for costs.

SEC. 94. Judgment. The judgment of the court in cases of contested election shali confirm or annu! the election according to the right of the matter; or, in case the contest is in relation to the election of some person to an office, shall declare as elected the person who shall appear to be duly elected.

SEC. 95. [Tie vote. If it appears that two or more persons have-or would have had if the legal ballots cast or intended to be cast for them had been counted the highest and an equal number of votes for the same office, the persons receiving such votes shall decide by lot, in such manner as the court shall by written order direct, which of them shall be declared duly elected; and the judgment shall be entered accordingly.

SEC. 96. [Judgment of ouster.)-When either the contestant or incumbent, shall be in possession of the office, by holding over or otherwise, the court shall, if the judgment be against the party so in possession of the office and in favor of his antagonist, issue an order to carry into effect the judgment of the court, which order shall be under the seal of the court, and shall command the sheriff of the county to put the successful party into possession of the office without delay, and to deliver to him all books and papers belonging to the same; and the sheriff shall execute such order as other writs.

SEC. 97. [Election declared void.]-When the person whose election is contested is found to have received the highest number of legal votes, but the election is declared null by reason of legal disqualification on his part, or for other causes, the person receiving the next highest number of votes shall not be declared elected, but the election shall be declared void.

SEC. 98. [Appeal.]-The party against whom judgment is rendered in cases tried in the county and district court, may appeal to the district or supreme court, and if the appellant be in possession of the office, such appeal shall not supersede the execution of the judgment of the court as provided in the preceding section, unless he give a bond with security, to be approved by the court, in a sum to be fixed by the court, and which shall be at least double the probable compensation of such officer for six months, which bond shall be conditioned that he will prosecute his appeal without delay, and that if the judgment appealed from be affirmed, he will pay over to the successful party all compensation received by him while in possession of said office after the judgment appealed from was rendered; and said bond shall contain the express consent that judgment may be rendered against the sureties on the appeal as provided in the following section.

SEC. 99. [Judgment against sureties.]—If upon the appeal the judg

ment be affirmed, the appellate court shall render judgment against the appellant and the sureties on his bond, or either of them, for the amount which the appellee is entitled to recover from the appellant on account of such contest, together with costs; but in such case the sureties, or either of them, shall be entitled to produce and examine witnesses concerning the amount of such recovery.

SEC. 100. [Appeal bond.—If upon appeal the appellant shall not be in possession of the office, he shall give bond, with security to be approved by the court where the judgment is rendered, conditioned to pay all costs that may be adjudged against him upon such appeal.

VACANCIES.

SEC. 101. [Vacancies.]-Every civil office shall be vacant upon the happening of either of the following events at any time before the expiration of the term of such office, as follows: 1. The resignation of the incumbent. 2. His death. 3. His removal from office. 4. The decision of a competent tribunal declaring his office vacant. 5. His ceasing to be a resident of the state, district, county, township, precinct, or ward in which the duties of his office are to [be] exercised, or for which he may have been elected. 6. A failure to elect at the proper election, there being no incumbent to continue in office until his successor is elected and qualified, nor other provisions relating thereto. 7. A forfeiture of office as provided by any law of the state. 8. Conviction of an infamous crime, or of any public offense involving the violation of his oath of office. 9. The acceptance of à commission to any military office, either in the militia of this state or in the service of the United States, which requires the incumbent in the civil office to exercise his military duties out of the state for a period not less than sixty days.

SEC. 102. [Resignations.]—Resignations of civil officers may be made as follows: 1. By the governor to the legislature, if in session, if not, to the secretary of state. 2. By senators and representatives in congress, and by all officers elected by the qualified voters of the state, and by judges of the supreme and district courts, district attorneys, and regents of the university, to the governor. 3. By members of the senate and house of representatives, to the presiding officers of their respective bodies, if in session, who shall immediately transmit information of the same to the governor. If such bodies are not in session, to the gov ernor. 4. By all county and precinct officers, to the county board, and by members of the county board to the county clerk. 5. By all township officers, to the township clerk; and by the township clerk to the town board. 6. By all officers holding appointment, to the officer or body by whom they were appointed. Such resignation shall not take effect until accepted by the board or officer to whom the same is made.

SEC. 103. [Filling vacancies.]-Vacancies shall be filled in the following manner: In the office of the reporter of the supreme court, by the supreme court. In all other state and judicial district offices, and in the membership of any board or commission created by the state, where no other method is specially provided, by the governor. In county offices by the county board; and in the membership of such board by the county clerk, treasurer and judge. In township offices by the town board, but where the offices of the town board are all vacant the clerk shall appoint, and if there be no town clerk, the county clerk shall appoint. In city and village offices, by the mayor and council or board of trustees.

SEC. 104. [Expiration of fixed term.-Every officer elected or appointed for a fixed term, shall hold office until his successor is elected, or appointed and qualified, unless the statute under which he is elected or appointed expressly declares the contrary. This section shall not be construed in any way to prevent the removal or suspension of such officer during or after his term in cases provided by law.

SEC. 105. [Appointments.]-Appointments under the provisions of this chapter shall be in writing, and continue until the next election at which the va cancy can be filled and until a successor is elected and qualified, and be filed with the secretary of state, or proper township clerk, or proper county clerk, respectively.

SEC. 106. [Possession of official property.j-When a vacancy occurs in a public office, possession shall be taken of the office room, and of the books. papers, and all things pertaining to the office, to be held until the election or appointment and qualification of a successor, as follows: Of the office of county clerk by his deputy, if there be one, if not, by the county judge; and in case of any delay in the election or appointment of a successor to the county clerk, his deputy shall continue to discharge the duties of the office, being responsible for the conduct and management thereof upon his official bond. Of the office of county treasurer by the sheriff. Of any of the state officers, by the governor, or in his absence or inability at the time of the occurrence, as follows: Of the secretary of state, by the treasurer. Of the auditor of public accounts, commissioner of public lands and buildings, and superintendent of public instruction, by the secretary of state. Of the treasurer, by the secretary of state and auditor of public accounts, who shall make an inventory of the money and warrants therein, sign the same, and transmit it to the governor if he be in the state; and the secretary of state shall take the keys of the safes and desks, after depositing the books, papers, money and warrants therein, and the auditor shall take the key of the office room. SEC. 107. [Election to fill vacancies.]-Vacancies occurring in any state, judicial district, county, precinct, township, or any public elective office, thirty days prior to any general election, shall be filled thereat. Vacancies occurring in the office of county judge [or] justice of the peace, where the unexpired term does not exceed one year, shall be filled by special election. Vacancies occurring in the office of any police magistrate in cities where the unexpired term does not exceed one year shall be filled by appointment, but vacancies occurring in such office less than thirty days prior to any city election, and where the unexpired term exceeds one year shall be filled by special election. And any person so appointed or elected under the provisions of this section shall hold his office for the unexpired term.

SEC. 108. [Vacancy in congress, or legislature.]-When a vacancy occurs in the office of representative in congress, or members of the legislature, and the body in which such vacancy exists will convene prior to the next general election, the governor shall order a special election to fill such vacancy at the earliest practicable time, and ten days notice of such election shall be given.

SEC. 109. [Special elections.]-The provisions relating to general elections shall govern special elections, except where otherwise provided for.

SEC. 110. [Canvass.] In all cases where special elections are held to fill vacancies in offices mentioned in the preceding subdivision, the board of canvassers shall meet at twelve o'clock M., on the third day after said election, to canvass the votes cast at such election, and the county clerk, within four days after any special election for a member of the legislature, or representative in congress, shall transmit to the secretary of state an abstract of the votes cast at said election, if there be more than one county in the district.

SEC. 111. [Canvass by state board.]-Within ten days after said election in the case last mentioned, the board of state canvassers shall meet and canvass the votes cast to fill such vacancy, and if the returns have not been received from all the counties composing said district, they may adjourn to such day as they deem necessary, not exceeding five, for the purpose of receiving said returns. SEC. 112. [Repealed act of 1873, G. S. 352: Laws 1877, 143, 146; and all acts inconsistent with the provisions of this act.]

SEC. 113. [Provided for act to take effect Sept. 1, 1879.] SEC. 114. [Canvass of vote where county clerk is candidate.]Whenever the county clerk of any organized county of this state shall be a candidate for any office created by the laws of this state, or for member of the legislature of this state, it shall be the duty of the probate judge of the proper county to select two qualified electors of the county, who, together with himself, shall

SEC. 114. "An act to provide for canvassing votes in certain cases." Laws 12th Sess. Ter. 1867, 18. Took effect Feb. 18, 1867.