Fitzgerald v. Kuppinger, 34108

• Citation: 163 Neb. 286,79 N.W.2d 547
• Decision Date: 03 December 1956
• Docket Number: No. 34108,34108
• Parties: Eugene F. FITZGERALD, Appellant, v. Herman E. KUPPINGER, Election Commissioner of Douglas County, Nebraska; Joseph R. Moore and Thomas P. Kelley, Appellees.
• Court: Supreme Court of Nebraska

Page 547

79 N.W.2d 547

163 Neb. 286

Eugene F. FITZGERALD, Appellant, v. Herman E. KUPPINGER, Election Commissioner of Douglas County, Nebraska; Joseph R. Moore and Thomas P. Kelley, Appellees.

No. 34108.

Supreme Court of Nebraska.

Dec. 3, 1956.

Syllabus by the Court.

1. By section 32-514, R.S.Supp., 1955 a filing for nomination for the office of judge of the district court by a candidate not the holder of another and different elective office was during 1956 required to be made not less than 40 days before the primary election.

2. By section 32-503, R.S.Supp., 1955 a filing for nomination for the office of judge of the district court by a candidate who was the holder of another and different elective office was during 1956 required to be made not less than 50 days before the primary election.

3. The office of county attorney is a legislatively created office in consequence of which it is to be treated as a legislative office as distinguished from a constitutional office.

4. The Legislature is without power to provide for the removal of a constitutional officer where the Constitution creates the office, fixes the term, and the grounds and manner of removal.

5. It was intended by the Legislature that section 32-503, R.S.Supp., 1955, should have application and reference to constitutional as well as statutory elective offices.

6. Where the intent of the Legislature in the enactment of legislation is clearly expressed the courts are in duty bound to accept that expression.

7. It is not within the province of the courts to read a meaning into a statute which is not warranted by the legislative language.

8. In the legislative domain and within constitutional bounds the Legislature is supreme.

9. Where a legislative enactment is clear, explicit, and unambiguous in the expression of intent and meaning, resort may not be had to contemporaneous construction or information to ascertain the intent of the Legislature.

10. The portion of section 32-503, R.S.Supp., 1955, under attack is unconstitutional as to constitutional officers.

11. If a portion of a legislative act is unconstitutional and the portion of the act cannot be separated from the other portion or portions and the latter enforced independent of the former, and it further appears that the unconstitutional part constituted such an inducement to the passage of the other parts that they would not have been passed without it, the entire act will fail.

12. It was intended by the Legislature that the legislation should affect alike constitutional and statutory elective officers and that thus by a disclosed inseparable intention an inducement which invalidated the entire provision was present.

13. If an act of the Legislature is constitutional in part and unconstitutional in part, the part which is constitutional may not be enforced unless it may be separated in such manner as to leave an independent statute capable of enforcement.

14. Section 32-503, R.S.Supp., 1955, to the extent stated in this opinion, is invalid and incapable of enforcement as to statutory elective officers.

August Ross, Norman Denenberg, Robert C. McGowan, Omaha, for appellant.

Swarr, May, Royce, Smith & Story, Albert E. May, Gaines, Spittler & Gaines, John T. Grant, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action by Eugene F. Fitzgerald, plaintiff and appellant, who has in his petition designated himself petitioner, against Herman E. Kuppinger, election commissioner of Douglas County, Nebraska, Joseph R. Moore, and Thomas P. Kelley, defendants and appellees, the primary purpose of which is to determine whether or not the plaintiff shall be the county attorney of Douglas County, Nebraska, on January 3, 1957, and so remain until January 8, 1959.

The defendants Moore and Kelley filed separate answers to the petition of the plaintiff and Moore also filed a cross-petition. As to them nothing need be said except that they joined issue on the question of whether or not the plaintiff would be and remain the county attorney from January 3, 1957, to January 8, 1959.

The case was tried to the court and a judgment was duly rendered wherein the relief prayed by plaintiff was denied. A motion for new trial was duly filed and overruled. From the judgment and the order overruling the motion for new trial the plaintiff has appealed.

The basic facts in the case are not in dispute. In the year 1954 the plaintiff became the duly elected county attorney of Douglas County, Nebraska, for the term beginning in January 1955 and ending January 8, 1959. On February 8, 1956, while acting as county attorney, he duly perfected his filing for nomination for the office of judge of the district court of the Fourth Judicial District of Nebraska, which is an elective office. By this filing he became a candidate to be voted upon at the primary election on May 15, 1956.

Thereafter the defendants Joseph R. Moore and Thomas P. Kelley, and two others, filed as candidates for nomination for the office of county attorney subject also to the primary election to be held on May 15, 1956. The theory of these filings was that the effect of the filing by the plaintiff for the office of judge of the district court was to vacate the office of county attorney as of January 3, 1957. At the primary election Moore and Kelley became the nominees of their respective parties for the office of county attorney and accordingly were given due notice of nomination by the election commissioner.

The filings of Moore and Kelley were made and the primary election as to them was held in pursuance of the provisions of section 32-503, R.S.Supp., 1955, as follows: '* * * If the candidate for an elective office is the incumbent of another partisan or nonpartisan elective office, the filing of the requisite nomination papers of such incumbent for any other partisan or nonpartisan elective office shall be perfected at least fifty days prior to the date of such primary, * * *. The filing of the requisite nomination papers, perfected as aforesaid, shall create a vacancy in the elective office which such candidate then holds as of the date of the commencement of the term of the office or as of the date such vacancy is filled by the election for which he filed or for which he accepted filing. Candidates may file for the unexpired term of the office which becomes vacant, as provided in this section.' This provision is amendatory of section 32-503, R.R.S.1943, which was in effect at the time the plaintiff became county attorney but the substance of the section as amended is not different in any material respect from what it was as it appeared in the 1943 revision.

The statutory section contains other provisions but they in nowise amount to a limitation of the application of the quoted portion to county attorneys filing for other elective offices, hence they have not been quoted and no further reference will be made to them.

On March 23, 1956, before the primary election, the plaintiff withdrew his filing for nomination for the office of judge of the district court. This was 53 days before the primary election.

It is pointed out here that a filing for the office of judge of the district court by a candidate not a holder of another and different elective office was, during 1956, required to be made not less than 40 days before the primary election. Section 32-514, R.S.Supp., 1955. It is also pointed out that a filing for the office of judge of the district court by a candidate who is the holder of another elective office was during 1956 required to be made not less than 50 days before the primary election. Section 32-503, R.S.Supp., 1955.

The purpose of this action insofar as the election commissioner was concerned was to enjoin him from placing the names of Moore and Kelley as candidates for county attorney on the ballot for the general election for 1956.

The substantial theory on which this purpose was predicated was, first, that section 32-503, R.S.Supp., 1955, to the extent that it provided for vacation of an elective office by filing and perfecting of nomination papers for another elective office and the provision that candidates could file for the unexpired term of the vacated office was unconstitutional and therefore void, in consequence of which the plaintiff was and would remain the duly elected and qualified county attorney until January 8, 1959; and, second, that even if the statute was constitutional it could not affect the right of plaintiff to continue in office as county attorney in view of the fact that he withdrew his filing more than 50 days before the primary election.

The purpose of the action as to Moore and Kelley is to obtain a declaratory judgment that the office of county attorney of Douglas County did not become vacant by the filing of the plaintiff for nomination for the office of judge of the district court.

The theory of the action as to these defendants and the ground upon which the plaintiff contends that he is entitled to the declaratory relief prayed is substantially the same as that interposed as the ground for injunction against the election commissioner, that is, that section 32-503, R.S.Supp., 1955, to the extent that it purports to affect the right of plaintiff to occupy the office of county attorney until January 8, 1959, is unconstitutional.

Before proceeding further it appears that it should be pointed out that the names of Moore and Kelley were duly placed on the ballot in conformity with the adjudication of the district court and at the election held on November 6, 1956, Kelley received the largest number of votes. Thus unless the statutory provision is held unconstitutional he will be entitled to occupy the office of county attorney from and after January 3, 1957, until January 8, 1959.

In the light of events as they have become apparent the appeal as to the defendant Kuppinger has...