Hiatt v. Tomlinson, No. 19339.

• Court: Supreme Court of Nebraska
• Writing for the Court: FAWCETT
• Citation: 100 Neb. 51,158 N.W. 383
• Docket Number: No. 19339.
• Decision Date: 03 June 1916
• Parties: HIATT ET AL. v. TOMLINSON ET AL.

100 Neb. 51
158 N.W. 383

HIATT ET AL.
v.
TOMLINSON ET AL.

No. 19339.

Supreme Court of Nebraska.

June 3, 1916.

Syllabus by the Court.

Actions under section 5698, Rev. St. 1913, to remove county officers from office, are highly penal in their nature, and the evidence must be clear and satisfactory. The language, “For habitual or willful neglect of duty” and “for willful maladministration in office,” involves more than oversight, carelessness, or mistake. To justify removal of a county officer on such grounds, it must be clearly shown that the action of such official was prompted by some evil intent or legal malice, or at least without sufficient grounds to believe that he was properly performing his duty.

Rose, J., dissenting.

Appeal from District Court, Holt County; Dickson, Judge.

Action by M. T. Hiatt and another against Henry W. Tomlinson and others. From a judgment for defendants, plaintiffs appeal. judgment affirmed in part and reversed in part.

[158 N.W. 383]

H. M. Uttley, of O'Neill, for appellants.

J. A. Donohoe and J. J. Harrington, both of O'Neill, for appellees.

FAWCETT, J.

This action was instituted by plaintiffs, as taxpayers and citizens of Holt county, under the first and sixth subdivisions of section 5698, Rev. St. 1913, to remove defendants from their offices as supervisors of such county. From a judgment dismissing the action at their costs, plaintiffs appeal.

The petition contains two paragraphs. The first simply alleges that plaintiffs are taxpayers and citizens of Holt county. The second is divided into 16 subdivisions. The sixteenth subdivision has been abandoned by plaintiffs in their brief. The first, second, fourth, fifth, sixth, seventh, eighth, tenth, twelfth, and fifteenth were stricken by the court. In the motion for a new trial plaintiffs do not assign any error of the court in striking out these subdivisions, and for that reason defendants have not given them any attention in their brief, although plaintiffs argue them. Defendants were justified in paying no attention to those subdivisions in this court. Plaintiffs, by failure to assign error as to them in their motion for a new trial, waived error, if any, in relation thereto. This leaves subdivisions 3, 9, 11, 13, and 14 to be considered.

The third subdivision complains of the defendants for allowing pay for clerks in the offices of the county attorney, sheriff, and county assessor, for the reason that such action was not allowed by law; that the board had not, prior to paying the salaries, found as a matter of fact that any clerks were necessary; and that no clerks were necessary in any of the said offices. The record shows that as to each of the three officers named the matter was taken up in advance by them with the board or with members of the board. In the case of the county attorney and sheriff the application for help was not made in writing; in the case of the assessor it was, but the action of the board was not specific. Here is the record:

“To the Hon. Board of Supervisors. Gentlemen: I do hereby make application for sufficient help in the office of county assessor for the year 1914. T. J. Coyne, county assessor. On motion petition was granted.”

[158 N.W. 384]

We think this point is settled adversely to plaintiffs' contention by Lancaster County v. Green, 54 Neb. 98, 74 N. W. 430;Berryman v. Schalander, 85 Neb. 281, 122 N. W. 990;Gage County v. Wright, 86 Neb. 436, 125 N. W. 625; and Emberson v. Adams County, 93 Neb. 823, 142 N. W. 294.

Subdivision 9 alleges that the defendants, during the years 1913 and 1914, allowed claims and drew warrants in payment thereof, for the building of bridges and culverts and for material furnished therefor, when the persons presenting such claims had never been employed by the board to build such bridges or furnish material therefor, and that this allegation applies to practically every claim allowed by the board and paid therefor by warrant during the two years named.

By subdivision 11 it is complained that the defendants, during the two years named, unlawfully failed and neglected to comply with chapter 111, Laws 1911, being section 2956, Rev. St. 1913, in reference to the letting of contracts for bridges, the cost of which exceeded the sum of $500, and failed to require bills for labor performed and material furnished for such bridges to be made out and filed in the manner required by statute, and failed and neglected to procure and keep records of bridges built.

Subdivision 13 complains that defendants, during the year 1914, failed, neglected, and refused to make any contracts for the purchase of supplies, such as books, blanks, etc., for the county, as required by sections 1089, 1090, Rev. St. 1913.

Subdivision 14 complains: That defendants did during 1914 unlawfully pay out a large amount of county money, levied and collected for the purpose of the expenses of Holt county for the year 1914, for bills filed, supplies furnished, and work and labor done during the year 1913, and prior thereto, without having included such claims or bills in the estimate of expenses made by them as required by law at the first meeting in January, 1914, among which were bills to the Western Bridge & Construction Company, amounting to $18,000, or more; bills to the Klopp-Bartlett Printing Company, amounting to $1,000 or more; bills to George A. Miles, to an amount to plaintiffs unknown; and to others whose names were unknown to plaintiffs. That all of these acts were wholly, entirely, and directly in violation of the statutes. The large amount paid to the Western Bridge & Construction Company, referred to in subdivision 14, was for bridge work rendered necessary by the washing out of some bridges and damage to others, which stopped travel in some cases, and rendered it dangerous in others. The evidence we think fairly shows that the commissioners in this instance advised with the lawyers at O'Neill and also with the district judge, all of whom it is claimed, and tacitly admitted by plaintiffs, advised the commissioners to go ahead and have the work done. In none of the cases is there pointed out any fraud or fraudulent intent on the part of the commissioners. It is not claimed that in the making of any of these purchases, or in having any of the work done, the commissioners entered into fraudulent collusion with any one; nor is there evidence to show...