State, ex rel. Castle, Relator v. Schroeder

• Decision Date: 19 September 1907
• Docket Number: 15,209
• Citation: 113 N.W. 192,79 Neb. 759
• Parties: STATE, EX REL. RAY O. CASTLE, RELATOR, v. WILLIAM SCHROEDER ET AL., RESPONDENTS
• Court: Nebraska Supreme Court

113 N.W. 192

79 Neb. 759

STATE, EX REL. RAY O. CASTLE, RELATOR, v. WILLIAM SCHROEDER ET AL., RESPONDENTS

No. 15,209

Supreme Court of Nebraska

September 19, 1907

ORIGINAL application for a writ of mandamus to compel respondents, as members of city council, to canvass vote. Writ allowed.

WRIT ALLOWED.

W. L Anderson, Roscoe Pound and John S. Bishop, for relator.

A. S Tibbets, E. C. Strode and T. J. Doyle, contra.

OPINION

SEDGWICK, C. J.

By an amendment to the statute governing cities of the first class enacted in 1905, it was provided that at a special election in that year seven aldermen should be elected, who should hold their office for the term of four years, until the municipal election in the year 1909. One of the alderman elected at the special election died in November of that year, and the respondent, William Schroeder, was appointed to fill the vacancy caused by his death. At the general municipal election in 1907 the relator was nominated by one of the political parties, and, having been a candidate for election, received the highest number of votes for that office, and demanded that the respondents, as councilmen and aldermen of the city, canvass the vote cast at that election for aldermen and declare the result. They having refused to do so, this application was made to this court for a writ of mandamus. The question thus presented is whether respondent, Schroeder, by virtue of his appointment, is entitled to hold the office for the remainder of the unexpired term of the deceased alderman, or at the next municipal election thereafter, which was the spring election of 1907, an alderman should be elected for the remainder of that term. It has always been the general policy of this state that the governing officers of the cities and towns should be selected by a vote of the electors, and, generally speaking, statutes providing for filling vacancies in elective offices authorize the filling of such vacancies by appointment beyond the time required for holding a special election to avoid the inconvenience of such special election, and persons so appointed usually hold the office only until the vacancy can be filled by the electors at a general election. This general policy of the state is declared in the general election law, section 107, ch. 26, Comp. St. 1905, which is as follows: "Vacancies occurring in any state, judicial district, county, precinct, township, or any public elective office, thirty days prior to any general election, shall be filled thereat. Vacancies occurring in the office of county judge or justice of the peace shall be filled by election, but when the unexpired term does not exceed one year the vacancy shall be filled by appointment, as provided in section one hundred and three. Vacancies occurring in the office of any police magistrate in cities where the unexpired term does not exceed one year shall be filled by appointment, but vacancies occurring in such office less than thirty days prior to any city election, and where the unexpired term exceeds one year, shall be filled by special election. And any person so appointed or elected under the provisions of this section shall hold his office for the unexpired term." And section 105 is as follows: "Appointments under the provisions of this chapter shall be in writing, and continue until the next election at which the vacancy can be filled and until a successor is elected and qualified, and be filed with the secretary of state, or proper township clerk, or proper county clerk respectively." Subdivision XLIX, sec. 129, art. I, ch. 13, Comp. St. 1905, providing for government of cities of the first class, authorized such cities "to provide for filling such vacancies as may occur in any elective office by appointment by the mayor, by the advice and consent of the council, to hold until the next general election." The office of alderman in the city of Lincoln is an elective office. The policy of the state is to provide means whereby the people shall be represented in that office by officials of their own selection, so far as possible, and it is the duty of the courts to keep that policy in mind when construing the various acts of the legislature in relation thereto, which may be thought indefinite, or to contain inconsistencies and conflicting expressions. The language of the general election law above quoted expressly applies to municipal offices, and in State v. Hamilton, 29 Neb. 198, 45 N.W. 279, it was held to apply to councilmen of the city of Lincoln. It, of course, applies in this case, unless the statute governing cities of the first class, or ordinances of the city of Lincoln authorized by that statute, furnish a different rule.

It is contended that the words "general election" used...