Prather v. Hart

• Decision Date: 07 July 1885
• Citation: 24 N.W. 282,17 Neb. 598
• Parties: PRATHER v. HART.
• Court: Nebraska Supreme Court

17 Neb. 598

24 N.W. 282

PRATHER

v.HART.

Supreme Court of Nebraska.

Filed July 7, 1885.

Quo warranto.

Webster & Stewart, for plaintiff.

A. F. Moore, for respondent.

COBB, C. J.

The constitution of the state (section 20, art. 3) provides that “all offices created by this constitution shall become vacant by the death of the incumbent, by removal from the state, resignation,” etc. The statute (section 101, c. 26, Comp. St.) provides as follows: “Every civil office shall be vacant upon the happening of either of the following events at any time before the expiration of the term of such office, as follows: (1) The resignation of the incumbent; (2) his death; (3) his removal from office; (4) the decision of a competent tribunal declaring his office vacant; (5) his ceasing to be a resident of the state, district, county, township, precinct, or ward in which the duties of his office are to be exercised, or for which he may have been elected,” etc. It appears from the pleadings and testimony in this case that one Daniel Brown was, at the general election of 1883, elected to the office of county judge for Franklin county. His term of office commenced on the first Thursday after the first Tuesday of January, 1884, and would expire by its own limitation two years from that date. But it also appears from the said pleadings and testimony that he removed from the state on the second day of June, 1884, and has never returned. The fact of such removal is not denied, but is admitted by the respondent. But his contention is that such removal was not intended to be permanent, but merely temporary. No doubt the word “removal” was used in the constitution in the same sense as the words “ceasing to be a resident of,” as used in the provision of the statute above quoted. Section 31 of the chapter last above cited gives us a key to the construction of this language as applicable to a person who has been absent from the state, but has returned and offers his vote at an election. Indeed, it gives us two keys, and leaves it quite uncertain which is the one applicable to the question in hand. The second clause of said section is as follows: “A person shall not be considered or held to have lost his residence who shall leave his home and go into another territory or state, or county of this state, for temporary purposes merely, with the intention of returning;” while the fifth clause is as follows: “If a person remove to another state or territory, intending to remain there for an indefinite time, and as a place of present residence, he shall be considered and held to have lost his residence in this state, notwithstanding he may intend to return at some future period.”

As above stated, these rules are applicable to persons offering to vote at an election at the place of the former or general residence, and in the light of an actual return thereto; and, if at all applicable to the case at bar, it lacks the important circumstance of the actual return of the absentee. The testimony on the point of the intention with which Judge BROWN left the state is conflicting, to say the most of it. On the day of his departure he addressed a communication to the county board, saying: “As I am going away to be temporarily absent for a few weeks, I most respectfully ask that you appoint Hon. John R. Hart to act as county judge of said county during such absence.”

The respondent, whose deposition was taken in his own behalf and read at the hearing, testified as follows: “ Interrogatory 3. Did you ever have any conversation with DANIEL BROWN in regard to his intended absence from this county, in and subsequent to the summer of 1884? If so, state what he said. Answer. Yes. At about the last of April or first of June, 1884, Judge BROWN told me that he was going to make a trip to Dakota and see his son and son-in-law. He spoke to me about acting as county judge during his absence. He said that he would leave a request with the county commissioners that I be appointed during his absence. Int. 8. Did he, in these conversations, or any other time, state how long he intended to be absent, and when he expected to return. If so, state what he said? A. The only definite time I remember of was six weeks.”

J. E. Kelly, a witness on the part of respondent, also testified to a conversation with Judge BROWN as follows: “Talking of leaving the town, he said he was going to make a visit to some of his relations,--either a son or son-in-law.” No date is given to this conversation. Henry Runby, also a witness for respondent, testified that he had a conversation with Judge BROWN, the date of which is not given, in which he said he was going to take a trip up to Dakota to see his son. E. H. Marshall, a witness for respondent, testified: “I had conversation with Judge BROWN several times concerning his trip to Dakota. Can't say he expressed the nature of his absence, only that he had a son up there. Was going up to see his son and the country, and see how he liked it.” No date is given to any of these conversations. A. F. Moore, also a witness on the part of respondent, testified as follows: “ Int. 5. State if you had any conversation with said DANIEL BROWN during the spring and summer of 1884 wherein the nature of his intended absence from the county was discussed? A. I did have two conversations with him. Int. 6. State what was said? A. The first conversation was on the porch of the Tremont Hotel; I should think the latter part of May, 1884. The conversation was commenced about a lawsuit which had been tried on that day. Subsequently BROWN spoke of intending to go to Dakota, to be absent several weeks. He said he was going to take some of his children to Dakota and have them locate there; that while in office he was not able to be at home except on Sundays, and he would take his children to Dakota, and he and his wife could then residealone in Bloomington during the rest of his term. The other conversation was a few evenings later, and was in front of the post-office. The conversation commenced about an amusing lawsuit in which the parties and witnesses were all French. He said there was a ludicrous, and, he supposed, tedious case then pending in his court, in which all the parties and witnesses were French; and he said he did not expect that case to be tried before him, because when he went away he expected to be gone a number of weeks, and he supposed some one would be appointed to act as county judge during his absence, and this case would be one of the cases to be tried.”

On the other hand, Ira E. Cadman, whose deposition was taken on the part of the relator and used at the hearing, testified as follows: “ Question. State all the facts and circumstances in regard to said DANIEL BROWN, his acts and conduct preparatory to his departure from this county, and preparation therefor, indicating his intention to remain absent permanently, or to return to this county? Answer. I heard he was going to remove. I went and saw him in person a month or two before he went away; asked him if it was a fact that he was going to leave us. He said, ‘Yes; for good.’ I asked him who would be apt to get the appointment to fill the vacancy caused by his removal. He told me he did not know. I told him I had understood that he was going to resign in favor of John R. Hart. He said he was not going to resign in favor of anybody, but simply hand in his resignation.” Charles Y. Rickett, whose deposition was also taken on the part of relator, testified as follows: “ Q. Have you heard at any time any conversation or statement in which he expressed his intention in regard to his intended absence being permanent or temporary? A. I did. Q. What was said at said...