State ex rel. Blessing v. Davis
| Decision Date | 17 April 1902 |
| Docket Number | 12,534 |
| Citation | 90 N.W. 232,64 Neb. 499 |
| Parties | STATE OF NEBRASKA, EX REL. ALVIN BLESSING, v. HORACE M. DAVIS |
| Court | Nebraska Supreme Court |
ORIGINAL application in the nature of a quo warranto to test the right of the respondent to hold the office of clerk of the district court for Valley county. Heard on demurrer to petition. Demurrer overruled.
DEMURRER OVERRULED.
Frank N. Prout, Attorney General, Norris Brown, Deputy, Clements Bros. E. M. Coffin and A. Norman, for relator.
W. H Thompson, Hall & Johnson, T. J. Doyle and H. E. Oleson contra.
DUFFIE, C. AMES and ALBERT, CC. concur.
This is an original action brought by the attorney general to test the right of the respondent to hold the office of clerk of the district court in and for Valley county. The information alleges that at the general election held in said county on the 5th day of November, 1901, Alvin Blessing was duly elected to the office of county clerk of Valley county; that, within the time and in the manner prescribed by law, he took the oath of office, gave a bond, which was duly approved, and became and was, and now is, duly qualified for said office of county clerk of said county, and on the 9th day of January, 1902, and ever since said time, has been acting county clerk of said county; that Valley county on the 7th day of November, 1899, did not contain eight thousand inhabitants; that said county of Valley, ever since its organization, has always been and now is a county of less than eight thousand inhabitants, and that the relator, by virtue of his election and qualification as county clerk of said county, is and has been ever since the 9th day of January, 1902, ex-officio clerk of the district court of said county, and entitled to the care and custody of all the books and records and property of said office, and to exercise the rights and duties of said office and receive the fees and emoluments thereto belonging. It is further alleged that chapter 28 of the Session Laws of the 25th session of the legislature, purporting to authorize the election of a clerk of the district court separate from the county clerk in counties having cast over sixteen hundred votes at any general election, is void, for certain reasons set out in the information. The information further recites that the respondent has usurped, and still continues to usurp, the office of the clerk of the district court of Valley county, without any legal claim or right, and that he has used and exercised, and still unlawfully uses and exercises, said office of clerk of the district court. To this petition the respondent demurred for the following reasons: (1.) For the reason that the court is without jurisdiction to hear and determine this case, as will be more fully shown by the aforesaid information. (2.) For the reason that the facts therein stated do not constitute a cause of action.
In the argument of the demurrer the attorney for the respondent insisted that the petition showed upon its face that the action was...
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