State ex rel. Dobson v. Meeker

• Decision Date: 31 March 1886
• Citation: 19 Neb. 444,27 N.W. 427
• Parties: STATE EX REL. DOBSON v. MEEKER.
• Court: Nebraska Supreme Court

19 Neb. 444

27 N.W. 427

STATE EX REL. DOBSON

v.MEEKER.

Supreme Court of Nebraska.

Filed March 31, 1886.

Mandamus.

N. K. Griggs, for plaintiff.

Ryan Bros. and Abbott & Abbott, for respondent.

REESE, J.

This is an application to this court, in the exercise of its original jurisdiction, for a peremptory writ of mandamus requiring the respondent to surrender to the relator the possession of the office of the clerk of the district court of Saline county, together with the seal, books, papers, and records belonging thereto. The allegations of the relator are that on and prior to the fourth day of August, 1885, the respondent was the duly-qualified and acting clerk of said court, and that on that day a complaint was filed with the county board, charging him with various violations of the law, and which by law are made cause for removal from office; that such proceedings were had before said board as on the sixth day of March, 1886, resulted in a finding and judgment of guilty, and a removal of respondent from said office by said board; that on the same day the said board duly appointed the relator to the office of such clerk, to fill the vacancy caused by such removal; that the relator had duly qualified as such officer by taking the necessary oath of office, and filing a bond, which was approved by the county board; that possession of said office had been demanded by relator, and refused by respondent. The answer of the respondent admits the allegations of relator as to his being the duly-elected and qualified clerk of the district court, and the finding and order of the board of county commissioners of March 6th, but denies the legal sufficiency of the complaint; denies that said findings and order of the county board are of any legal force or effect, and alleges that said pretended judgment of removal is void. It is also alleged that on the eighth day of March, 1886, he presented to said board his supersedeas bond in the sum of $1,000, with good and sufficient surety, and demanded a proper transcript of proceedings, and that such tender of bond and demand for transcript were for the purpose of removing said cause to the district court of said county for review by proceedings in error. Said board declined to approve said bond, giving as their sole ground for such refusal a want of authority so to do, and that he thereupon secured said bond to be approved by the clerk of said district court, and filed in said court his petition in error, together with a transcript of said proceedings, and that said proceedings in error are now pending in said court. The pretended appointment of relator by said board is admitted, but it is alleged that said board had no power or authority to make the same, and that said pretended appointment was void. Upon the hearing it was stipulated that relator had taken the oath of office, and filed his bond as alleged by him, and that proceedings were pending in the district court as alleged by respondent.

The contentions of the respondent are that mandamus is not the proper remedy, there being a complete remedy by proceedings in the nature of quo warranto; that the relator has not been legally appointed, and that a supersedeas bond having been filed, and the cause removed into the district court by proceedings in error, the judgment of the county board is superseded, and respondent is entitled to hold the office until a final determination of the case. As it seems to us, the first question must depend upon the other two for solution. If the removal of respondent was valid in law, thereby creating a vacancy in the office, and if the county board had authority to appoint relator, and the proceedings in error have not superseded the judgment of removal, then it would be clear that relator is entitled to the office. This right being conceded, it is pretty clear that mandamus would be the proper remedy. State v. Jaynes, 26 N. W. Rep. 711.

The next contention, that relator has not been legally appointed, calls in question the authority of the county board to appoint a clerk of the district court in case of the removal of an incumbent. Section 101 of chapter 26 of the Compiled Statutes provides that “every civil office shall be vacant upon the happening of either of the following events, at any time before the expiration of the term of such office, as follows: (1) The resignation of the incumbent; (2) his death; (3) his removal from office,” etc. Section 103 provides that “vacancies shall be filled in the following manner: In the office of the reporter of the supreme court, by the supreme court; in all other state and judicial district offices, and in the membership of any board or commission created by the state, where no other method is specially provided, by the governor; in county and precinct offices, by the county board,” etc.

The office of the clerk of the district court being a county office, the power is here given to fill a vacancy therein. But it is insisted by counsel for respondent that section 9 of chapter 18, Id., especially confers this authority upon the district court. This chapter provides the method of removal of county...