State ex rel. Broatch v. Moores

• Decision Date: 09 December 1897
• Parties: STATE EX REL. BROATCH v. MOORES.
• Court: Nebraska Supreme Court

52 Neb. 770

73 N.W. 299

STATE EX REL. BROATCH

v.MOORES.

Supreme Court of Nebraska.

Dec. 9, 1897.

Syllabus by the Court.

1. On demurrer, judgment should go against the party whose pleading was first defective in substance.

2. The office of mayor of a city of the metropolitan class is an office of profit and trust, under the laws of this state.

3. Unclaimed witness fees and costs remaining in the hands of the clerk of the district court are not public moneys; and the legislation of this state, in so far as it attempts to devest the persons for whose benefit such fees and costs are paid of title thereto, is unconstitutional and void.

4. A clerk of the district court, as to moneys received by him in payment of fines and penalties imposed in his court, is a collector and custodian of public money, within the meaning of section 2 of article 14 of the constitution.

5. The term “default,” as used in said section of the constitution, implies more than a mere civil liability. There must exist a willful omission to account and pay over, with a corrupt intention or such a flagrant disregard of duty as to fairly justify the inference that his conduct was willful and corrupt.

6. The word “eligible” relates to the capacity to be elected or chosen to office, as well as to hold office.

7. Held, that the information states a cause of action.

8. The answer of the respondent avers sufficient matters, if true, to constitute a defense.

Application by the state, ex rel. William J. Broatch, for a writ of quo warranto against Frank E. Moores, to test his right to hold the office of mayor. To the answer the relator demurred. Demurrer overruled.

Harrison, J., and Irvine and Ragan, CC., dissenting.

Per Norval, J. Post, C. J., and Ryan, C., concurring. Ragan, C., dissenting.

Per Norval, J., and Ragan, C. Post, C. J., and Ryan, C., concurring.

Harrison, J. Irvine and Ragan, CC., dissenting.

Per Norval, J. Post, C. J., and Ryan, C., concurring.

C. C. Wright, Jas. B. Sheean, and Frank T. Ransom, for petitioner.

John C. Wharton and J. J. Boucher, for respondent.

NORVAL, J.

This was an application by the state, on the relation of William J. Broatch, for a writ of quo warranto against Frank E. Moores, to test the right of the respondent to hold the office of mayor of the city of Omaha. The averments of the application or information, so far as they are material to an understanding of the questions involved, may be summarized as follows: (1) That at an election duly held in the city of Omaha in November, 1895, relator, being qualified and eligible thereto under the constitution and laws of the state, was elected mayor of said city for the term of two years, commencing on the first Tuesday in January, 1896, and until his successor was elected and qualified; that he duly qualified and entered upon the duties of the office, and has since discharged the functions thereof. (2) That, under and by virtue of an act of the legislature of 1897 (being chapter 12a, Comp. St. 1897), at an election held in said city on the 20th day of April last, the respondent received a majority of the votes cast thereat for the said office of mayor, and the canvassing board declared him elected for the term of three years from and after the 10th day of May, 1897; that respondent thereupon qualified by giving the bond, and taking and subscribing the oath of office as required by said law, and claims the right, authority, and power to exercise and discharge the duties of mayor of said city, and is usurping and invading the functions of said office. (3) That for eight years ending in January, 1896, respondent was the duly elected, qualified, and acting clerk of the district court of Douglas county, and, as such clerk, during said period, he collected and received, in fines and penalties imposed by said court upon divers persons, aggregating the amount of $2,061.20, which prior to May 9, 1897, he had failed and refused to account for and pay over to his successor in office or to the county treasurer, but applied the same to his own use and benefit; that on said day respondent paid to the county treasurer, of said amount, the sum of $1,818.83, but has neglected and refused to pay at any time the remaining sum of $242.37. (4) That respondent, as such clerk, collected, in cases pending or disposed of in said court, certain witness fees, aggregating $7,283.35, which remained in his hands for six months, uncalled for, and likewise collected certain advance fees and lower court costs in the aggregate sum of $2,363.45, which remained in his hands for two years after the payment thereof, uncalled for; that he has failed, neglected, and refused to pay the last two amounts, or any part thereof, to his successor in office, to the treasurer of Douglas county, or to any other person, but has converted the same to his own use; that, by reason of the facts above set forth, respondent was in default as collector and custodian of public money, which rendered him ineligible to the office of mayor, and his election thereto is null and void; and that he is wrongfully usurping and invading said office. (5) That respondent took possession of the office of mayor against the protest of the relator, and that the latter has not abandoned said office or any claim thereto.

The answer filed to the information, after admitting the election and qualification of the relator and respondent, respectively, to the office of mayor, as above set forth, and that respondent was clerk of the district court of Douglas county from January, 1888, to January, 1896, denies that respondent is unlawfully usurping the office of mayor, or that, as collector and custodian of public funds, he was in default or is ineligible to said office, and alleges, substantially, that during his incumbency of the office of clerk of the district court he collected altogether, in fines and penalties, the sum of $6,027.56, and has paid over to the county treasurer the entire amount thereof; that it was his bona fide intention and purpose at all times to pay all the fines and penalties by him collected within a reasonable time thereafter to the proper officer, and accordingly did. from time to time, pay to the county treasurer amounts aggregating the sum of $4,208.73. And as an excuse for not paying to said treasurer, before the expiration of respondent's term as clerk of the district court, the difference between said amounts, to wit, the sum of $1,818.83, the answer avers, in effect that the items aggregating the sum of $364, in Docket 7, at pages 115, 183, 185, and 186 were collected if at all by respondent'sdeputy, without respondent's knowledge, and he has no record whatever of said money other than unsigned receipts upon the docket in the handwriting of said deputy, and is of the opinion, and firmly believes, and has always believed and so alleges the fact to be, that he never received said sum or any part thereof; that the items aggregating the sum of $200 in Docket 32, p. 226, were paid to such deputy during a serious illness of respondent, in the month of April, 1895, the same being the last year of his term of district clerk; that his attention was at no time called to said sums nor did he know that the same or any part thereof had ever been paid into his office; that, if he had known of same being paid, he would have turned the money into the county treasury; that as to the sum of $500, being payment of fines as shown in Docket 46, p. 232, respondent alleges he was notified by the proper officers and attorney of the city of Omaha and of the board of education not to pay said fine to the county treasurer, but to hold the same for said board, and was likewise notified by the county attorney of Douglas county not to pay the amount of said fine to the city treasurer, but to hold the same for the school fund of said county; and in pursuance of and in accordance with the agreement of the respective attorneys representing, and authorized to represent, the said county, the city of Omaha, and the board of education, respondent held said money until about the 9th day of May, 1897, when he was released from said obligation to hold said fine or to pay the same to the city treasurer by the attorney representing said city and board of education in said matter; whereupon respondent forthwith paid the full amount of said fine to the county treasurer, as he was at all times ready and willing to do, but for the contentions and agreements of said parties; that the various other items of fines which go to make up the sum of $1,818.83 were paid to respondent on different dates in small amounts, none larger than $100, which were receipted for by him upon the appearance docket; that from time to time he made report to the county commissioners of moneys collected by him for the county, and paid the same to the county treasurer, and intended to include all of those sums, but the same were overlooked, and could not with reasonable diligence have been discovered prior to about the date of the payment thereof to the county treasurer; that, during the last year of his term as clerk of the district court, he had constantly in his employ a person whom he supposed to be a skilled accountant, whose sole duty it was to check up all the dockets and records of said office, and report to respondent all moneys received by the latter for the county and for individuals which had not theretofore been paid over; that during said year respondent made payments of various sums on account of fines as reported by accountant; that at the close of respondent's term said accountant made a purported final tabulated report, which, upon examination, was found to be so imperfect, incorrect and unreliable that it was put aside as worthless, and a second accountant was engaged to prepare a correct statement; that, in accordance with his report, respondent, on the 9th day of May, 1897, paid to said treasurer said sum of $1,818.83, which included all the fines...