Gordon v. Lowry
| Decision Date | 24 January 1928 |
| Docket Number | 25992 |
| Citation | 217 N.W. 610,116 Neb. 359 |
| Parties | ALEXANDER H. GORDON, APPELLANT, v. FRANCIS W. LOWRY, COUNTY CLERK, ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Affirmed.
AFFIRMED.
Miller & Randall and Barlow Nye, for appellant.
N. P McDonald, contra.
Heard before GOSS, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY JJ., and REDICK, District Judge.
This suit was brought to enjoin the issuance, or delivery, of a salary warrant to a county officer. The prayer of plaintiff is in the usual form for general and equitable relief. Plaintiff demurred to the defendants' answer. The demurrer was overruled. The plaintiff electing to stand on his demurrer and refusing to plead further, on motion of the defendants for judgment on the pleadings, the court found for the defendants and plaintiff's action was thereupon dismissed with the costs taxed against the plaintiff.
Following is the plaintiff's contention as pleaded in his petition: That any sum paid to county attorney Reed, as salary, in excess of $ 125 a month is unlawful on the ground that the county had a population of less than 24,000 inhabitants during all of the time material to this controversy.
In support of his argument, the plaintiff in his brief cites chapter 91, Laws 1925. The act follows:
"If, during the periods elapsing between censuses taken under supervision of the federal government, there arises any question as to the present population of any civil subdivision of the state of Nebraska, the population stated in the last federal census for such civil subdivision shall govern and control."
We do not think the above cited statute is controlling for the reasons following: First, it constitutes an intrusion into the functions of the judicial department of the state government; and second, it infringes upon and is in conflict with section 1, art. II, of the Constitution of Nebraska, which reads:
"The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others except as hereinafter expressly directed or permitted."
And the question in respect of the population of the state, or of the population of any of its subdivisions, is purely a question of fact to be determined by the court the same as other fact questions.
For their answer, among other allegations, the defendants pleaded that, for all times material to this suit, Buffalo county had a board of seven supervisors; that an investigation was had by the board, in respect of the population of Buffalo county, to the end that the salaries of county officers and deputies, and county employees as well, might be determined; that under such investigation the supervisors adjudged and determined that the county, on November 21, 1924, had a population of 25,000 and upward, and that its determination was not appealed from. It is also pleaded that the county board, pursuant to the enumeration made by the board, fixed the salary of the incumbent county attorney at $ 1,800 per annum payable $ 150 a month.
The defendants argue that Buffalo county, at all times material to this suit, had a population of 25,000 inhabitants, and that the county attorney's salary, therefore, comes within the meaning of section 2372, Comp. St. 1922, which, inter alia, provides that, "in counties having a population of twenty-four thousand and less than thirty thousand" inhabitants, county attorneys shall be allowed by the county board for their services a yearly salary "not exceeding eighteen hundred dollars."
For the reasons, and under the authority, herein pointed out, we do not think the argument of plai...
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