Frans v. Young
| Decision Date | 18 September 1890 |
| Citation | 46 N.W. 528,30 Neb. 360 |
| Parties | B. F. FRANS v. F. M. YOUNG |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cass county. Tried below before CHAPMAN, J.
AFFIRMED.
Beeson & Root, for plaintiff in error, cited: May v. Sch Dist., 22 Neb. 205; B. & M. R. v. Lancaster Co., 4 Id., 293; Creighton v. Commonwealth, 83 Ky 142; Hamlin v. Kassafer, 15 Or. 456; Rapalje & Lawrence, Law, Dic., 845.
B. S Ramsey, and Polk Bros., contra, cited: Beach v. Leahy, 11 Kan. 23; Angell and Ames, Cor. [9th Ed.], sec. 24; Dist. No. 3 v. Malcolm, 4 Wis. 79*; Bassett v. Fish, 75 N.Y. 312; People v. Bennett, 54 Barb. [N. Y.], 480; Sch. Dist. v. Cowee, 9 Neb. 53; State v. Stone, 40 Iowa 547; State v. Bates, 23 Iowa 96; Barret v. Reed, 2 O., 409; Atty. Genl. v. Churchill, 41 Mo. 41; Wescott v. Holly, 12 Wend. [N. Y.], 481; Blenkenship v. Co. Court, 44 Mo. 230; Metz v. Anderson, 23 Ill. 63.
On the 18th day of September, 1889, the county attorney of Cass county having consented thereto, the relator filed in the district court of said county an information in the nature of a quo warranto, to try the right of the respondent to the office of moderator of school district No. 6 of Cass county.
It is alleged in the petition that on the 4th day of April, 1887, the relator possessed all the qualifications required by law to entitle him to hold the office of moderator for said school district; that at the annual school election, held on said day in said school district, the relator was elected to the office of moderator for said school district for the term of three years from said date; that immediately thereafter he entered upon the discharge of the duties of said office as moderator, and continued to discharge the duties thereof, by presiding at school district meetings of said district, countersigning warrants and orders on the county and school district treasurers for moneys belonging to said district, and performing all and singular the duties imposed by law on moderators of school districts; that the relator continued to discharge the duties of moderator of said district for the period of two years, and has one year of his said term of office to serve from and after the second Monday of July, 1889, and that he has not removed from said district, nor has he resigned said office of moderator.
The petition further alleges that the respondent, Benjamin F. Frans, on or about the second Monday of July, 1889, and from thence continually hitherto, without any legal warrant, claim, or right, has used and exercised, and still does unlawfully use and exercise, and pretends to discharge the duties of the office of moderator in said school district No. 6 for the aforesaid term of office of the relator, and claims to be the moderator of said district in place of the relator. The relator prays judgment that the respondent be ousted from said office and that the relator be declared entitled to the same.
For answer to the petition the respondent "denies that the relator was elected to the office of moderator of said school district in the year 1887, but alleges the truth to be that at the annual meeting of said district, in April, A. D. 1888, the relator was elected to the office of moderator of said district, but that he failed to qualify or to file his written acceptance of said office in the time required, or at any other time, and so respondent charges that relator never was moderator de jure of said district, but that he assumed to act and did act as moderator of said district from said meeting in April until the regular annual meeting of said district in June, 1889, at which time the respondent was duly elected to the office of moderator of said district for two years, and that he duly qualified as such moderator and entered upon the discharge of the duties of said office, and that he now holds such office by virtue of such election and qualification."
A general demurrer was filed to the answer, which was sustained, and a judgment of ouster was entered against the respondent. That decision is assigned for error.
It is insisted by the respondent that the relator was not an officer de jure, because he never took the usual oath of office, and failed to file with the director of the school district his written acceptance of the office of moderator.
It is conceded by the respondent that the school law contains no provision requiring a person elected to the office...
To continue reading
Request your trial
- Click v. Sample
-
Herald v. Board of Education
... ... not a corporation vested with general powers of a business ... corporation. The books call it rather a quasi corporation ... Frans v. Young, 30 Neb. 360, 46 N.W. 528, 27 ... Am.St.Rep. 412. It is a public corporation, in that it is a ... part of the governmental structure and ... ...
-
School Dist. of Omaha v. Adams
... ... holds otherwise, under statutes similar to our own ... [39 N.W.2d 556] ... In that ... regard, Frans v. Young, 30 Neb. 360, 46 N.W. 528, 27 ... Am.St.Rep. 412, relied upon by plaintiff, involved simply the ... question of whether or not a school ... ...
-
Nw. Mut. Life Ins. Co. v. Mulvihill
...the office being one established by law, and there being no provision of statute that an oath be taken by such officer, See Frans v. Young, 30 Neb. 360, 46 N. W. 528. See, also, Laird v. Leap, 42 Neb. 834, 60 N. W. 1043; 16 Am. & Eng. Enc. Law, 1021, note 3; Com. v. Cushing, 99 Mass. 592; C......