State ex rel. Cooper v. Hamilton

• Decision Date: 19 March 1890
• Citation: 29 Neb. 198,45 N.W. 279
• Parties: STATE EX REL. COOPER v. HAMILTON.
• Court: Nebraska Supreme Court

29 Neb. 198

45 N.W. 279

STATE EX REL. COOPER

v.HAMILTON.

Supreme Court of Nebraska.

March 19, 1890.

Syllabus by the Court.

1. Where a vacancy occurs in the office of councilman in a city of the first class less than 30 days prior to the annual city election, it cannot be filled at that election.

2. When an information is filed by a private person to oust the incumbent from an office and instate the relator therein, it must state facts showing the relator's right to the office. State v. Stein, 13 Neb. 529, 14 N. W. Rep. 481.

Quo warranto.

Lamb, Ricketts & Wilson, for relator.

Charles L. Hall, for respondent.

NORVAL, J.

This was an information in the nature of a quo warranto by the relator against the respondent, the object of which was to establish the relator's supposed right to the office of councilman for the Fourth ward of the city of Lincoln, and to oust the respondent therefrom. The allegations of the petition are as follows: “(1) Comes now the relator in his own behalf, and prosecutes this action, the attorney general of the state of Nebraska having refused to prosecute the same; and for cause of action the relator shows to the court that he is, and for more than four years last past has been, a citizen and resident and tax-payer and legal voter of the Fourth ward of the city of Lincoln, Lancaster county, Neb. (2) That the city of Lincoln is a municipal corporation duly organized under the laws of Nebraska as a city of the first class since about the 15th day of March, 1889, and for two years prior thereto was a city of the first class, having less than sixty thousand inhabitants, and as such a city was duly organized under the laws of the state of Nebraska, and during all the period of the last three years has been divided into six wards, numbered in their order from one to six. (3) That at the annual election of said city of Lincoln held on the first Tuesday in April, 1888, one Robert B. Graham was duly elected councilman of said city of Lincoln, Neb., from the Fourth ward of said city, for the period of two years, and qualified and took his seat as such councilman; that as the time for the general election, on the first Tuesday in April, 1889, in said city, approached, said Graham announced himself a candidate for the nomination for mayor of said city at the hands of the Republican party of said city, and at and prior to the holding of said convention of the Republican party, on March 30, 1889, said Graham caused it to be given out that he would resign his office as councilman for the Fourth ward of said city prior to the annual election to be held on the first Tuesday in April, 1889, and requested that a candidate be nominated by the Republican city convention to fill the vacancy that would be caused by his resignation, to be voted for at the forthcoming annual election in said city to be held on Tuesday, April 2, 1889; that in pursuance thereto your relator was regularly placed in nomination by the Republican city convention as a candidate for councilman from the Fourth ward, to fill the vacancy to be caused by the resignation of said Graham; that like candidates to fill said vacancy were nominated by the Democratic and other political parties to be voted for at said forthcoming annual election; that on the 1st day of April, 1889, Robert B. Graham filed with the mayor and councilmen, in open council meeting then being duly and regularly held, the following resignation, to-wit: ‘To the Honorable Mayor and Council, City: I hereby tender my resignation as councilman of the Fourth ward, to take effect at once. R. B. GRAHAM, Councilman Fourth Ward,’--thereby creating a vacancy in the office of one of the councilmen from the Fourth ward, for the period of one year, to be filled at said general election; that it was generally understood by all the legal voters of said city, and especially of the Fourth ward, that there was to be elected at the annual election to be held on the first Tuesday in April, 1889, a councilman from the Fourth ward of said city to fill the vacancy caused by said resignation, in addition to other officers from said ward and said city to be elected for full terms; that in pursuance thereto the respective political parties printed and circulated generally at the polls in the Fourth ward of the city of Lincoln at said city election held on the first Tuesday in April, 1889, being the 2d day of April, 1889, tickets having placed thereon, in addition to regular candidates for full terms, a candidate for councilman from said ward to fill the vacancy caused by the resignation of said Graham; that the total number of votes past in the Fourth ward at said election were 829, of which your relator received 478 good and legal votes, being a majority of all the votes cast in said ward at said election, and was duly elected councilman to fill the vacancy caused by the resignation of said Graham, and then was, and ever since has been, ready to qualify and perform the duties of said office; that the votes, with the poll-books, were duly returned to and filed with the city clerk of said city by the judges and clerks of election in said ward, and still remain on file with the said city clerk. (4) That, notwithstanding the premises, and the fact that said Robert B. Graham, on the 1st day of April, 1889, filed his resignation with the mayor and councilmen of said city as stated in paragraph 3 hereof, the council, instead of accepting said resignation, over the objection of said Robert B. Graham, orally made in open council, referred the matter of the acceptance of said resignation to a committee on elections and the city attorney; that thereafter, and at said meeting on the 1st day of April,...