State, ex rel. O'Gara v. Furley

• Decision Date: 30 January 1914
• Docket Number: 18,325
• Citation: 145 N.W. 343,95 Neb. 161
• Parties: STATE, EX REL. P. F. O'GARA, COUNTY ATTORNEY, APPELLEE, v. CHARLES F. FURLEY, APPELLANT
• Court: Nebraska Supreme Court

145 N.W. 343

95 Neb. 161

STATE, EX REL. P. F. O'GARA, COUNTY ATTORNEY, APPELLEE, v. CHARLES F. FURLEY, APPELLANT

No. 18,325

Supreme Court of Nebraska

January 30, 1914

APPEAL from the district court for Cedar county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

F. P Voter, R. J. Millard and J. C. Robinson, for appellant.

P. F O'Gara, C. B. Willey and A. R. Davis, contra.

OPINION

LETTON, J.

Charles F. Furley was elected county commissioner of Cedar county at the general election held in November, 1909. He entered upon the duties of the office, and was exercising the same at the time this action was begun. At the general election in 1912 Edward H. Carroll was a candidate for the office and Furley was a candidate to succeed himself. Carroll was elected, and qualified. On January 9, 1913, he appeared before the board of county commissioners and demanded to be seated and recognized as a member of the board. The demand was refused on the ground that Furley's term of office had not expired. This action was then brought to oust Furley. Judgment of ouster was rendered, and from this judgment Furley appeals.

The information pleads the facts as stated. The respondent's answer is to the effect that at the time he was elected in 1909 he believed that the term of office was for only three years, but that he afterwards ascertained that under the laws of this state his term did not expire until the expiration of four years; that the election of November, 1912, was unauthorized and illegal; and that Carroll has never filed with the county clerk of Cedar county the statement required under the corrupt practice act (Comp. St. 1911, ch. 26, art. III).

The first question presented, and the most important, is whether the term of office of a county commissioner in a county with three commissioners is three years or four years. Respondent concedes that from the adoption of the Revised Statutes of 1866 until July 4, 1905, the length of term of such office was three years, but he maintains that by the provisions of sections 54 and 55, art. I, ch. 18, Comp. St. 1905, the term of office was changed from three to four years. At the 1905 session of the legislature an attempt was made by amendments to existing statutes to do away with annual elections and to provide that elections for all offices in this state should only be held biennially. A number of statutes were amended so as to make the terms of various officers conform to the changed time of election. The identical question here presented was involved in the determination of the case of State v. Plasters, 74 Neb. 652, 105 N.W. 1092, and it was held that the amendment was void. This was followed by State v. Offill, 74 Neb. 669, 105 N.W. 1099, and State v. Offill, 74 Neb. 670, 105 N.W. 1098. One of these cases related to the office of county supervisor, and the rule in the Plasters case was adhered to. The rule announced controls this case, and the attempted amendment of 1905 left the three-year term unchanged. It may also be said that the provisions of the general election law of 1879 (laws 1879, p 240) provide that the term of county commissioners should be for three years. This act...