Moseman v. State ex rel. Hench

• Decision Date: 09 February 1900
• Docket Number: 11,067
• Citation: 81 N.W. 853,59 Neb. 629
• Parties: HERMAN F. MOSEMAN ET AL. v. STATE OF NEBRASKA, EX REL. JOHN M. HENCH, COUNTY ATTORNEY
• Court: Nebraska Supreme Court

81 N.W. 853

59 Neb. 629

HERMAN F. MOSEMAN ET AL. v. STATE OF NEBRASKA, EX REL. JOHN M. HENCH, COUNTY ATTORNEY

No. 11,067

Supreme Court of Nebraska

February 9, 1900

ERROR from the district court of Dixon county. Tried below before EVANS, J. Affirmed.

AFFIRMED.

W. A Martin and R. G. Strong, for plaintiffs in error.

McCarthy & Pearson and Joshua Leonard, contra.

OPINION

NORVAL, C. J.

This was a proceeding in quo warranto instituted in the court below by the state, on the relation of the county attorney of Dixon county, to test the right of respondents to act as trustees of the village of Emerson, to oust them therefrom and install Louis Swartz, James McHenry, Ed L. Ross, Charles C. Bondreau and Jacob Jansen therein. The respondents, Michael Schindler and Charles P. Jacobson, answered the application, each disclaiming all right and title to the office of trustee of said village, and to any privileges or franchises belonging thereto, and averring that his term of office as trustee expired in the spring of 1899 pursuant to the election and qualification of his successor in office, as set forth in the information of the relator. The other defendants answered, setting up their title to the offices of trustees. The trial resulted in a judgment being entered ousting the respondents from said offices and instating therein Swartz, McHenry, Ross, Bondreau and Jansen. All the respondents joined in a motion for a new trial and have filed a joint petition in error herein.

Under article 1, chapter 14, Compiled Statutes 1897, the respondents were the duly qualified and acting trustees of the village of Emerson at and prior to the village election held on April 4, 1899. The legislature of 1899 passed an act with an emergency clause amending sections 41, 42 and 60 of said article and chapter, and repealing the original sections, which act was approved by the executive on April 1, 1899, or three days prior to the holding of the election that year in the village of Emerson, and at which election Swartz, McHenry, Ross, Bondreau and Jansen respectively received the highest number of votes for the office of trustee of said village. The original sections provided for the election of five trustees for each village to serve for the term of one year and until their successors are elected and qualified. The amendatory act made provision for the same number of trustees, "two of whom shall be elected to serve one year,...