Stasch v. Weber, 38354
| Decision Date | 07 July 1972 |
| Docket Number | No. 38354,38354 |
| Court | Nebraska Supreme Court |
| Parties | Jake STASCH et al., Appellants, v. Clyde WEBER et al., Appellees. |
Syllabus by the Court
1. In a quo warranto proceeding, ordinarily the burden of proof in the first instance is on the defendant who claims the right to the office.
2. In a quo warranto proceeding, no legal presumption arises in favor of the defendant merely from his establishment of his possession of the office which he claims.
3. Section 25--21,122, R.R.S.1943, provides any elector of the appropriate county may bring a quo warranto proceeding against any county public office holder when the county attorney of the appropriate county refuses to do so.
4. Generally, in a quo warranto proceeding, when a challenged official purports to hold office by virtue of an election, he must show that the election was held and that he was in fact elected.
5. Generally, provisions for holding over until a successor is elected and qualified do not prolong the incumbent's term indefinitely, but only for a reasonable time to allow a successor to qualify.
Michael V. Smith, Gordon, for appellants.
W. Gerald O'Kief, Valentine, John A. Wagoner, Thomas A. Wagoner, Grand Island, for appellees.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
This is a quo warranto action initiated by several residents of Cherry County, Nebraska, seeking to oust the members of the Cherry County Committee for the Reorganization of School Districts, hereinafter referred to as the County Committee. The district court resolved all of the issues in favor of the defendants. We reverse the judgment of the district court and direct that a judgment of ouster be entered.
The issues presented in this case are whether the defendants, in the first instance, were lawfully elected to office and second, whether they are lawfully holding office at the present time. The statute establishing the procedure for the election to the County Committee is section 79--426.05, R.R.S.1943, which provides in relevant part: 'All of the members of the school boards and boards of education within the county and joint districts under the jurisdiction of that county committee shall, at a meeting called for that purpose by the county superintendent of schools within one hundred twenty days from August 27, 1949, and each four years thereafter, (1) determine by a majority vote of those present the number of members of the county committee within the limits prescribed in this section, and (2) elect for a term of four years, all the remaining members of the committee * * *.'
Because of the nature and importance of an ouster action, the rules governing the procedure are different than in an ordinary civil action. No presumption arises in a person's favor merely from his physical possession or his attempt to exercise the authority of a public office. In an ouster action, the person claiming the office must make a prima facie showing of his legal right to hold the office. Once that is done, certain presumptions (not applicable herein) arise in his favor which may cause the burden of advancing to shift to the relator, but it is clear that the burden of proof in the first instance is on the defendant whose right to the office is challenged. See, State ex rel. Einstein v. Northup, 79 Neb. 822, 113 N.W. 540; 74 C.J.S. Quo Warranto § 43, p. 260; 44 Am.Jur., Quo Warranto, s. 106, p. 167; Ferris, Extraordinary Legal Remedies, s. 136, p. 156.
The relators have standing to bring this action. This is true even though they claim no right to the office themselves. This result follows from a proper construction of section 25--21,122, R.R.S.1943. The action, under the statute, must in the first instance be brought by the county attorney of the appropriate county. The statute provides that in the event he refuses to bring such action, a private person acting in the public interst may bring such action to oust an officeholder who is not legally entitled to his office. The relators, having complied with the provisions of the statute, become substituted in interest with the county attorney and it follows that the same rules as to burden of proof and procedure apply as if the action were brought by the Attorney General or the county attorney in the first instance.
We turn to the evidence. Despite the fact that the statute requires an election every 4 years, the only official record in the evidence in this case of an election of or to the County Committee are the minutes of a meeting held for that purpose on October 15, 1957. The minutes show that one 'Cleo Bloom' was elected in 1957, and 'Cleo Bloom, Jr.' is a defendant in this action brought over 10 years later. There is nothing in the record to explain or to show that these names refer to the same person. More important, 'Bob Hanna' was elected, according to the minutes, in 1957, and 'Samuel K. Hanna' is a defendant herein. There is an oblique reference in the record which indirectly suggests that these may be the same person, but there is no proof that they are. Surely the identity of an elected public official must be established with certainty and cannot rest upon speculation as to phonic similarity.
The record does show that in January 1963, an information letter was set to the State Committee for Reorganization of School Districts which shows the names of the members of the County Committee and indicates that they were elected April 5, 1962. But nowhere in the record does there appear the official minutes of the County Committee, the results of the voting, or a canvass of the votes to establish officially the record of the defendants' election. No explanation of this failure appears in the record. It is not suggested that they were lost, destroyed, or for some other reason secondary evidence could not be introduced to establish the minutes showing that the statutory procedure had been followed and the election held. It...
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