State ex rel. Broatch v. Moores

• Decision Date: 08 March 1899
• Citation: 58 Neb. 285,78 N.W. 529
• Parties: STATE EX REL. BROATCH v. MOORES.
• Court: Nebraska Supreme Court

58 Neb. 285

78 N.W. 529

STATE EX REL. BROATCH

v.MOORES.

Supreme Court of Nebraska.

March 8, 1899.

Syllabus by the Court.

1. The question of the sufficiency of a petition or information to state a cause of action is, when the defect is substantial, open for consideration throughout the proceeding, and may even be raised on a motion for rehearing.

2. Want of legal capacity to sue refers to a general legal disability. If such do not exist, the failure of a plaintiff to show a right of action in himself goes to the sufficiency of the pleading to state a cause of action, and is not waived by failure to demur for want of capacity.

3. The provisions of Sess. Laws 1897, p. 54, c. 10 (the so-called charter of cities of the metropolitan class), examined, and held to demand that, in case of ineligibility of the person receiving the highest number of votes at the first general election for mayor, the president of the council should exercise the office, and not the former incumbent.

On rehearing. Dismissed.

For former opinion, see 76 N. W. 530.

Sullivan, J., dissenting.

IRVINE, C.

In this, an original action in quo warranto, opinions have already been filed on two occasions. On the first the court discussed the merits of a demurrer to the answer of the respondent, and it was held, by a divided court, that the information stated a cause of action, and the answer a defense. State v. Moores, 52 Neb. 770, 73 N. W. 299. The case was then referred for a trial of the issues, and later came before the court on motions, on the one side for a judgment of ouster, and on the other to set aside the referee's report in favor of the relator. Id., 56 Neb. 1, 76 N. W. 530. A judgment of ouster was ordered, but subsequently a rehearing was allowed, and the case has again been submitted. The former opinions disclose, with full particularity, the nature of the case and of the pleadings, but, as those opinions are somewhat voluminous, it may not be amiss to restate a few general facts pertinent to the questions on which the conclusion we have now reached depends. The relator alleges that he was, prior to the act of 1897 (Sess. Laws 1897, p. 54, c. 10), which created what is called a new “charter” for metropolitan cities, the duly elected, qualified, and acting mayor of the city of Omaha; that at the first election held under the act of 1897, the respondent, Moores, received the highest number of votes for the office of mayor, and was declared elected; that he gave the bond, took the oath, and assumed to exercise the duties of the office. There were then alleged certain facts which it was claimed rendered the respondent ineligible. Under our procedure, quo warranto may be maintained either by the prosecuting attorney or by a private individual. Code Civ. Proc. tit. 23. But, if the proceeding be not instituted by the public officer, it must be by a person who himself claims the office. State v. Stein, 13 Neb. 529, 14 N. W. 481. Therefore a question which we logically meet in limine is whether the relator has shown in himself a right to the office, assuming that the respondent was ineligible. Until the motion for a rehearing, this question escaped attention by counsel, or at least it was not argued. In the opinion by Judge Norval on the demurrer, which voiced the views of the majority, the following language was used: “Under and by virtue of section 11, c. 12a, Comp. St. 1895, a person elected mayor of a city of the metropolitan class is entitled to the office during the term for which he was chosen, ‘and until his successor shall be elected and qualified.’ Substantially the same provision is contained in chapter 10, Laws 1897.” State v. Moores, 52 Neb. 770, 73 N. W. 299. This point was thus cursorily assumed, as it had not then been questioned, and the language quoted was not the deliberate expression of opinion on a controverted point. On the rehearing it has been urged that the relator, as the incumbent of the office under the former charter, was not entitled to hold over under the new until the time this action was commenced. On behalf of the relator it is argued that it is now too late to raise such a question. If the question goes to the sufficiency of the information to state a cause of action it is not too late, although regularity of practice should require an earlier presentment of the point. In appellate proceedings the sufficiency, in substance, of the pleadings to support the judgment forms an exception to the almost universal rule that no question will be considered which was not presented to the court of first instance. When, in an original action, a motion for a rehearing presents that question to this court, we should not avoid a duty, imposed upon us in appellate cases, of vacating a judgment which has no support in the pleadings on which it has been based. If the question cannot be now raised, it must be because it goes, not to the sufficiency of the information to state a cause of action, but only to the legal capacity of the plaintiff to sue. The latter defect must, when it appears on the face of the petition, be suggested by special demurrer on that ground, or it will be waived. Code Civ. Proc. §§ 94, 96. In Farrell v. Cook, 16 Neb. 483, 20 N. W. 720, it was held that the want of legal capacity to sue involves only a general legal disability, such as infancy, idiocy, want of authority. Therefore, when the plaintiff is a natural person, under no general disability to maintain actions, a failure to state a cause of action in his own favor goes to the sufficiency in substance of the petition, and not to his legal capacity. Willard v. Comstock, 58 Wis. 565, 17 N. W. 401;Bond v. Armstrong, 88 Ind. 65;Frazer v. State, 106 Ind. 471, 7 N. E. 203;Campbell v. Campbell, 121 Ind. 178, 23 N. E. 81. The cases cited are all in point on principle, and we know of no authority to the contrary. The right of the relator to maintain the action depends upon his own right to the office. The statement of that right is essential to the statement of a cause of action. The right he claims is by virtue of having been mayor when the old charter was repealed. This is wholly a question of law.

The question must be determined by a construction of section 102 of the present charter, in connection with other provisions in pari materia. The section referred to is as follows: “All general elective city officers including city councilmen, their appointees and existing boards, agents and servants, now lawfully holding office or entrusted with the care of public property or affairs under the law and ordinances heretofore in force, shall, except as in this act otherwise provided, continue in office and the exercise of such trust until the first general city election herein provided for, and until the officers selected at such election shall have duly qualified, but such officers, agents, servants and appointees may be removed from office, suspended or discharged as provided by law or ordinance. All existing boards entrusted with property and business under authority of laws heretofore in force, shall at the expiration of their terms of office, except as herein otherwise provided, turn over such property, records and accounts to such other officer or boards as are herein empowered or entrusted to succeed thereto or have possession thereof. Any officer continued in office under the provisions of this act beyond the date when his term would expire, under the law in force when elected or appointed, shall give additional bonds for the faithful discharge of the duties of his office for such extended term, the amount of such bond to be governed by this act or, when not provided for herein, by ordinance. It shall be the duty of each of the respective boards and officers to prepare written detail abstract of all tools, implements and materials of every kind belonging to the city in their trust and care, also all work or storehouses owned or leased by the city for storage or other purposes, in duplicate, and to certify as members of such boards to the correctness thereof; such certified abstracts shall be delivered to the mayor, who shall file one of each of said copies for record with the city clerk, and the other copies shall be handed to the heads of the respective departments to be used as a basis for checking up the abstracts. Provided, that the provisions of this section shall not apply to the board of fire and police commissioners, but said board and the members thereof now acting shall cease to hold office upon the qualification of their successors appointed by the governor under the provisions of this act.” Comp. St. 1897, c. 12a, § 102. It is evident that the general purpose of this section was to continue in existence the essential governmental machinery of the city until officers could be selected and installed under the new act. This act, with an emergency clause, repealed the former charter, so that without this section the city of Omaha would have been without a municipal government from the time the new act was passed until the organization thereunder several weeks later. The object of the section was to bridge over this period. Some duties which the former act imposed on a certain officer or boards were by the new imposed upon other officers, so that section 102 in general terms provided that those exercising duties under the old should continue to exercise those duties under the new until the officers upon whom the new charter imposed similar duties were elected and qualified. Upon the perfection of the new organization, section 102 would have performed its functions, and become obsolete. By section 13 a special provision was made for an election of officers on a day as near as practicable to that when the act took effect, and on a date other than that provided for subsequent elections. This and many other provisions throughout the act plainly disclose a legislative intent to as soon as possible supersede the former city government...