State ex rel. Berge v. Lansing

• Decision Date: 20 November 1895
• Docket Number: 7619
• Citation: 64 N.W. 1104,46 Neb. 514
• Parties: STATE OF NEBRASKA, EX REL. GEORGE W. BERGE, v. ISAAC W. LANSING ET AL
• Court: Nebraska Supreme Court

64 N.W. 1104

46 Neb. 514

STATE OF NEBRASKA, EX REL. GEORGE W. BERGE, v. ISAAC W. LANSING ET AL

No. 7619

Supreme Court of Nebraska

November 20, 1895

ERROR from the district court of Lancaster county. Tried below before TIBBETS, J.

REVERSED AND REMANDED.

C. C Flansburg, W. M. Morning, and G. W. Berge, for plaintiff in error.

Allen W. Field, J. R. Gilkeson, N. Z. Snell, and E. P. Brown contra.

IRVINE C. NORVAL, C. J., and RAGAN, C., dissenting.

OPINION

See opinions for reference to authorities.

IRVINE C.

The essential facts charged in the information herein are as follows: That at the general election of 1891 Isaac W. Lansing was elected county judge of Lancaster county, and that he duly qualified and discharged the duties of his office; that at the general election in 1893 Lansing was reelected to said office and a certificate of election issued to him, but that he did not execute any official bond or file the same in the office of the county clerk within ten days after the 4th day of January, 1894, but that on the 25th day of January, 1894, Lansing did file a good and sufficient bond, which was on the 26th day of January approved by the county board. The relator then charged that by virtue of the failure of Lansing to file his official bond within the time provided by law the office became vacant; that the relator was nominated by two political parties entitled to have their nominations placed upon the official ballot as a candidate for county judge to fill the vacancy so created; that the county clerk in the notice of election for 1894 did not include the office of county judge as one of the offices to be filled, but that he placed the name of the relator and the name of another candidate upon the official ballot and upon the sample ballots, which were duly distributed, and that the voters had general knowledge of the candidacy and of the fact that votes were being cast for said office; that the total number of votes cast in said county at the election of 1894 was 12,060; that there were cast for Zara Wilson for county judge 1,663 votes, and there were cast for relator 4,746 votes; that said vote was duly canvassed and the relator declared elected, and the certificate of election issued to him; that the relator executed a good and sufficient official bond and took the oath of office, which was duly indorsed upon said bond; and that the county board, in pursuance of a writ of mandamus issued from the district court, within due time approved said bond; that relator was eligible to the office of the county judge. It is further charged that at the time proceedings were brought one Joseph Wurzburg was temporarily discharging the duties of county judge by appointment by the county board during the temporary absence and disability of Lansing. Judgment of ouster was prayed against Lansing and Wurzburg. The district court sustained a general demurrer to the information and entered judgment for the respondents.

The first question presented by the record, and the question of chief importance in the case, is whether the failure of Lansing to present his bond within the time provided by law deprived him of the right to the office. The statutes bearing upon the subject are as follows:

Compiled Statutes, chapter 10:

"Sec. 5. Official bonds, with the oath indorsed thereon, shall be filed in the proper office within the times as follows: Of all officers elected at any general election on or before the first Thursday after the first Tuesday in January next, succeeding the election; of all appointed officers within thirty days after their appointment; of officers elected at any special election, and city and village officers, within thirty days after the canvass of the votes of the election at which they were chosen.

"Sec. 7. The official bonds of all county, precinct, and township officers shall be approved by the county board. * * * All such bonds shall be filed and recorded in the office of the county clerk. * * *

"Sec. 15. If any person elected or appointed to any office shall neglect to have his official bond executed and approved as provided by law, and filed for record within the time limited by this act, his office shall thereupon ipso facto become vacant, and such vacancy shall thereupon immediately be filled by election or appointment as the law may direct in other cases of vacancy in the same office.

"Sec. 17. When the incumbent of an office is re-elected or re-appointed he shall qualify by taking the oath and giving the bond as above directed; but when such officer has had public funds or property in his control, his bond shall not be approved until he has produced and fully accounted for such funds and property; and when it is ascertained that the incumbent of an office holds over by reason of the non-election or non-appointment of a successor, or of the neglect or refusal of the successor to qualify, he shall qualify anew within ten days from the time at which his successor, if elected, should have qualified."

Compiled Statutes, chapter 26:

"Sec. 101. 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. 6. A failure to elect at the proper election, there being no incumbent to continue in office until his successor is elected and qualified, nor other provisions relating thereto. 7. A forfeiture of the office as provided by any law of the state. 8. Conviction of any infamous crime, or of any public offense involving the violation of his oath of office. 9. The acceptance of a commission to any military office, either in the militia of this state, or in the service of the United States, which requires the incumbent in the civil office to exercise his military duties out of the state for a period not less than sixty days."

Lansing in 1893 was elected as his own successor, and section 17 is, therefore, applicable to the case. The effect of this section is to require that one who is re-elected to an office shall qualify by taking a new oath and giving a new bond "as above directed;" that is, as directed in regard to officers for the first time elected, by the former provisions of the chapter in which section 17 appears. This requires conformity with the provisions of sections 5, 7, and 15 above quoted. The object of section 17 was manifestly to place one re-elected to an office, so far as qualifying for the office is concerned, upon the same footing as one for the first time elected. Therefore sections 15 and 17 must be read together as if section 17 read "When the incumbent of an office is re-elected or re-appointed, he shall qualify by taking the oath and giving the bond as above directed. And if any incumbent of an office re-elected thereto shall neglect to have his official bond executed and approved as provided by law, and filed for record within the time limited by this act, his office shall thereupon ipso facto become vacant." The provision for vacancy because of the failure to file the bond within time is not repugnant to the provisions of section 101 above quoted. It is practicable to construe the two sections together, and they should, therefore, be so construed, being in pari materia, and not conflicting. Section 101 provides for nine cases of vacancy, all but one contemplating events happening after the induction of the officer into office. Section 15 adds another cause of vacancy, relating to the failure of the person elected to comply with the conditions precedent to his induction. A difference in the language of these two sections is important, and it may be well at this point to call attention thereto. By section 101 it is simply provided that the office "shall be vacant upon the happening of either of the following events." By section 15 it is provided that a failure to have the bond approved and filed within the time limited by law shall "ipso facto" create a vacancy.

It is contended by the relator that by virtue of section 15 Lansing's failure to have his bond approved and filed within the time provided by law of itself created a vacancy in the office; that by such failure Lansing lost his right to the office and was not reinvested with the right by the subsequent approval of his bond. By the respondents it is contended that the provisions of section 15 are not self-executing; that, so far as the time for filing the bond is concerned, the statutes are directory only; that Lansing, notwithstanding his default, had a defeasible title, and that the subsequent approval of his bond was a waiver of his default and rendered his title indefeasible. The application of the statute to all officers renders the question of considerable general importance, and we have, therefore, sought light upon the construction of the act from the decisions of other courts with relation to statutes analogous in their object.

In some of the cases cited in the respondents' brief, or in opinions referred to in that brief, the expressions on the subject are entirely obiter. Thus, in Creighton v. Commonwealth, 83 Ky. 142, the person elected had never made any attempt to qualify, and what was said in regard to irregular qualification was entirely foreign to the case. In State v. Hadley, 27 Ind. 496, the question was not as to the effect of a failure to file the bond within time, but as to the event from which the time began to run and the court held that properly computed it...