Sorensen v. Swanson

• Decision Date: 04 January 1967
• Docket Number: No. 36548,36548
• Citation: 147 N.W.2d 620,181 Neb. 205
• Parties: Fred SORENSEN, Constestant and Plaintiff, v. Wayne R. SWANSON, a Railway Commissioner of Nebraska, Contestee and Defendant, Frank B. Morrison, Governor of the State of Nebraska et al., Defendants.
• Court: Nebraska Supreme Court

Page 620

147 N.W.2d 620

181 Neb. 205

Fred SORENSEN, Constestant and Plaintiff, v. Wayne R. SWANSON, a Railway Commissioner of Nebraska, Contestee and Defendant Frank B. Morrison, Governor of the State of Nebraska et al., Defendants.

No. 36548.

Supreme Court of Nebraska.

Jan. 4, 1967.

Syllabus by the Court

1. Except in the exercise of its appellate jurisdiction, the Supreme Court is a court of limited and enumerated powers as provided by Article V, section 2, of the Constitution of Nebraska.

2. Quo warranto, or a proceeding in the nature thereof, lies only against one who is in possession and user of office, or who has been admitted thereto.

3. An action by the occupant of an executive state office to contest the election of his successor is not an action in quo warranto within the meaning of Article V, section 2, of the Constitution of Nebraska.

4. The purported grant of power to the Supreme Court by sections 32--1001.01 and 32--1001.02, R.S.Supp., 1965, to take original jurisdiction of election contests is inhibited by Article V, section 2, of the Constitution of Nebraska, defining the original jurisdiction of the Supreme Court.

5. The amendment of Article IV, section 4, of the Constitution of Nebraska, made in 1960 as follows: 'The conduct of election contests for any of said offices shall be in such manner as may be prescribed by law' does not purport to be and is not amendatory of the limited original jurisdiction of the Supreme Court as fixed by Article V, section 2, of the Constitution of Nebraska.

6. When an amendment to the Constitution is legally adopted, it becomes a part of that instrument, and its application to subsequent transactions must be considered precisely as though it had been originally adopted as a part thereof in its amended form.

7. The limits of the original jurisdiction of the Supreme Court as fixed by Article V, section 2, of the Constitution of Nebraska, may not be increased or extended either by the consent of the parties or legislative enactment.

8. The provisions of sections 32--1001.01 and 32--1001.02, R.S.Supp., 1965, purporting to invest the Supreme Court with original jurisdiction to hear and determine election contests are unconstitutional and void in that they contravene Article V, section 2, of the Constitution of Nebraska.

William L. Walker, Lincoln, Ralph R. Bremers, Omaha, for contestant and plaintiff.

Viren, Emmert & Epstein, Jack Marer, Omaha, James E. Ryan, Lincoln, for contestee and defendant.

Clarence A. Meyer, Atty. Gen., Gerald Vitamvas, Deputy Atty. Gen., Calvin E. Robinson, Lester R. Seiler, Asst. Attys. Gen., Lincoln, for defendants.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ.

CARTER, Justice.

The plaintiff filed a petition in this court denominated a petition for election contest against the defendant Swanson as contestee and other state officers. Defendants filed demurrers to the petition. Briefs were filed and oral arguments had. The issues raised by the demurrers are now before this court for decision.

The petition alleges that plaintiff is the duly elected, qualified, and acting Treasurer of the State of Nebraska. He filed for reelection to the office on December 17, 1965, and was duly nominated as the candidate of the Democratic party at the primary election following. The defendant contestee, a member of the Nebraska State Railway Commission, filed for the office of State Treasurer of the State of Nebraska on October 27, 1965, and was duly nominated as the candidate of the Republican party at the primary election following. At the general election held on November 8, 1966, defendant contestee received the highest number of votes for Treasurer of the State of Nebraska and plaintiff received the second highest number of votes for said office. Ti is alleged that defendant contestee will assume the office of Treasurer of the State of Nebraska on January 5, 1967, unless an action for an election contest is then pending as by law provided.

Plaintiff alleges that the defendant contestee was ineligible to be a candidate for the office to which he was elected in that he is an executive officer within the provisions of Article IV, section 2, of the Constitution, and, therefore, is ineligible to any other state office during the period for which he was elected as a member of the railway commission. It is not disputed that the defendant contestee was a member of the Nebraska State Railway Commission at the time of his filing for the office of Treasurer of the State of Nebraska and serving a term ending in January 1969. Plaintiff prays that the Supreme Court grant leave to file his petition, take evidence, and enter judgment against defendant contestee to the effect that he is ineligible to hold the office of Treasurer of the State of Nebraska, and, in effect, enjoin the defendant contestee from qualifying for the office.

Demurrers were filed to plaintiff's petition on the grounds (1) that the Supreme Court does not have jurisdiction of the subject matter as granted to that court by Article V, section 2, Constitution of Nebraska; (2) that sections 32--1001.01 and 32--1001.02, R.S.Supp., 1965, violate Article V, section 2, Constitution of Nebraska; and (3) that the petition does not state facts sufficient to constitute a cause of action.

The original jurisdiction of the Supreme Court is defined and granted by Article V, section 2, Constitution of Nebraska, as follows: 'The supreme court shall have jurisdiction in all cases relating to the revenue, civil cases in which the state is a party, mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as may be provided by law.' 'It is argued that the petition is in the nature of quo warranto, and that the delegation of original jurisdiction in quo warranto authorizes this court to assume jurisdiction of the present action.

Quo warranto is a common law remedy. It was in ancient times a high prerogative writ of right for the King against one who usurped, misused, or failed to exercise his office. The common law writ was broadened by statute in England to increase its scope to some extent. 44 Am.Jur., Quo Warranto, s. 3, p. 89; State ex rel. Good v. Conklin, 127 Neb. 417, 255 N.W. 925. Many states in this country dealt with quo warranto by statute. In Nebraska, the subject is dealt with in sections 25--21,121 to 25-21,148, R.R.S.1943. This statute provides that an information may be filed against any person holding office who has committed an act that works a foreiture of his office. Section 25--21,121, R.R.S.1943. The information may be filed by the Attorney General or county attorney, or by an elector under certain conditions when the Attorney General or county attorney fail or refuse to act. Section 25--21,122, R.R.S.1943. When the defendant is holding an office claimed by another, the trial must, if practicable, determine the rights of the contesting parties. Section 25--21,127, R.R.S.1943. The necessity of obtaining permission of the Attorney General or county attorney does not apply in a suit between the contesting parties under the authority of section 25--21,146, R.R.S.1943.

The question here presented is whether or not an occupant of a public office may bring an action in quo warranto against one elected to but not holding the office on the ground of the latter's ineligibility. At common law, quo warranto was applied to the sole purpose of determining the right of an occupant to hold the office and ousting a wrongful possessor. It would appear that this common law rule is applicable except to the extent that it has been modified by statute. Our statute, above cited, has not modified the primary purpose of the common law writ of quo warranto.

At common law, the writ of quo warranto was available only to try the question of usurpation of or intrusion into a public office. This court appears to have adhered to this rule. In State ex rel. Good v. Marsh, 125 Neb. 125, 249 N.W. 295, this court said: 'The defendant insists that the information comes too late, for that, if brought at all, it must have been brought before defendant Marsh assumed the duties of the office of county treasurer on January 8, 1931. In this the defendant is in error, for quo warranto, or a proceeding in the nature thereof, lies only against one who is in the possession and user of the office, or who has been admitted thereto. * * * 'Quo warranto will lie only when the party proceeded against is either a de facto or de jure officer in possession of the office, and an office that is vacant is in possession of no one. * * * Quo warranto will not lie before the beginning of the term of office."

In State ex rel. Larson v. Morrison, 155 Neb. 309, 51 N.W.2d 626, we said: 'Quo warranto or a proceeding in the nature thereof lies only against one who is in possession and user of the office or who has been admitted thereto.'

Under the foregoing holdings, the petition in this case cannot be construed as one in quo warranto. The plaintiff is admittedly the holder and occupant of the office of Treasurer of the State of Nebraska, and, as such, a writ of quo warranto is not available to him.

The plaintiff contends that the Supreme Court is authorized to take jurisdiction of the case as an election contest under the provisions of sections 32--1001.01 and 32--1001.02, R.S.Supp., 1965. Defendants contend that insofar...