State ex rel. Good v. Marsh
| Decision Date | 27 June 1933 |
| Docket Number | No. 28732.,28732. |
| Citation | 249 N.W. 295,125 Neb. 125 |
| Parties | STATE EX REL. GOOD, ATTY. GEN., ET AL. v. MARSH. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Quo warranto, or a proceeding in the nature thereof, lies only against one who is in possession and user of the office, or who has been admitted thereto.
2. An information in the nature of quo warranto is only employed to test the actual right to an office, not to afford relief against misconduct.
3. If acts of misconduct charged are declared by statute to work a forfeiture of his office, judgment of ouster may be given against such officer for breach of his official duty.
4. The office of county treasurer is an office of trust and profit, under the laws of the state of Nebraska.
5. He is a collector and a custodian of public money, within the intent and meaning of section 2, art. 15 of the Constitution of Nebraska.
6. The provision, found in section 2, art. 15 of the Constitution, providing that an officer who is in default is not eligible to hold any office of trust or profit, requires sufficient
proof of such willful misconduct that the intent to misappropriate the trust funds in his hands as county treasurer is fairly inferable therefrom.
Original proceedings in the nature of quo warranto by the State, on the relation of Paul F. Good, Attorney General, and another, against Ora O. Marsh, to oust respondent from the office of County Treasurer of Richardson County.
Respondent ousted.
Wm. H. Wright, Asst. Atty. Gen., Paul F. Good, Atty. Gen., and J. H. Falloon, of Falls City, for plaintiffs.
John C. Mullen, D. D. Reavis, and Frank N. Prout, all of Falls City, for defendant.
Heard before GOSS, C. J., GOOD, EBERLY, DAY, and PAINE, JJ., and CHASE and LOVEL S. HASTINGS, District Judges.
This is an original application in the nature of quo warranto to oust respondent from the office of county treasurer of Richardson county, Nebraska, on the ground that he is ineligible to hold such office, within the meaning of section 2, art. 15 of the Constitution of Nebraska, which provides: “Any person who is in default as collector and custodian of public money or property shall not be eligible to any office of trust or profit under the constitution or laws of this state.”
An information in quo warranto was filed in this court by the state of Nebraska, upon the relation of Paul F. Good, attorney general, and J. H. Falloon, county attorney of Richardson county, Nebraska, relators, as plaintiffs, against Ora O. Marsh, respondent, as defendant. Leave to docket same was granted by all of the members of this court signing the præcipe. A summons was thereupon issued, and served by the sheriff of Richardson county; an answer was filed, asking that the information in quo warranto be dismissed, whereupon a stipulation was entered into by each of the parties, and filed in this court March 21, 1933, by which each party consented to the immediate appointment of a referee, and, subject to the approval of this court, suggested that Donald C. Gallagher be appointed as such referee, which was duly ordered by this court. An amended answer was filed, and a reply thereto, and upon May 16, 1933, the referee filed his report in this court, and the same came on for hearing upon the objections to the report of the referee, setting out that the information in quo warranto does not charge that the defendant knowingly, wilfully, intentionally, or corruptly took any money at any time from Richardson county, and that the report is not sustained by competent evidence or sufficient evidence, and that the report is contrary to the law and the evidence, and is conflicting and contradictory in its terms. Each party having filed briefs herein, an oral argument was made to the court, and the same is now submitted for an opinion.
The referee, in his findings of fact, sets out that Ora O. Marsh was elected county treasurer of Richardson county in November of 1926, and re-elected in November, 1930, which last term began upon January 8, 1931, on which date he was short $860, which amount he had converted to his own use from the funds of Richardson county, and was then in default in said amount; that an audit was made, under direction of the county board, and upon January 26, 1931, he was found to be short $620, and by another audit of his books it was found that upon December 31, 1931, he was short $480, which amount had been converted to his own personal use, without any authority therefor.
The referee further finds that the said defendant issued license No. 19--49 for his own automobile in the year 1930, and has never paid nor accounted therefor.
The referee further finds, from the evidence given before him by the defendant, that he was a persistent borrower from the county funds in his hands, and sought to justify and excuse the taking of these funds on the ground that he believed himself entitled to retain five cents for the issuance by his office of each automobile license, basing his contention upon a law amended by the legislature in 1925, being section 60-325, Comp. St. 1929. Upon June 19, 1931, this court filed an opinion in the case of Wayne County v. Steele, 121 Neb. 438, 237 N. W. 288, which provided that county treasurers were not personally entitled to said fee of five cents, yet after such decision defendant continued to take money from the cash fund of his office, and attempted to justify or excuse his practice in so doing because of his unfortunate financial condition and personal necessities.
To make clear the exact manner in which the defendant took out money for his own use, we find that volume 3 of the records in the case at bar is made up of exhibits Nos. 1 to 441, each of which consists of a yellow memorandum paper about 8 1/2 inches wide by 7 inches in length. These exhibits are all written in lead pencil except one, and according to the testimony of Vern H. Shier, the bookkeeper in the county treasurer's office for many years, are the only records in the office which give in detail the items which made up the daily cash balance according to the cash book. All of the books, receipts, and records of every kind required to be kept in a county treasurer's office were accurately kept, as shown by the various audits made of the office, and the only record of the shortage in the office was shown on these 441 exhibits, being the separate daily work sheets, showing what the cash consisted of each particular night, itemizing the total amounts in each coin from one cent to one dollar, and in currency, and also giving the checks and cash items, and on each one of the daily lists the first name appearing on the left-hand side is the name “Marsh,” with the amount due from him, as, for instance, on exhibit 263, November 12, 1931, the items carried that day were $725 due from Marsh, $14 due from Bowers, and $12 due from Mobley, the last two being upon checks of friends which had been turned down, and which he carried for months as cash items. No attempt was made to conceal the shortage from the employees in the office.
It is further shown that Mr. Marsh, his deputy, and the bookkeeper, sometimes all three helped in making out this daily work sheet of the cash; at other times it was entirely made out by any one of the three persons in the office who closed up that particular night. The first line under cash items for each of these 441 exhibits gives the exact amount of the shortage for that day of Mr. Marsh; it being considered by the two employees that this item was in the nature of an I-O-U. Exhibit No. 1 is for January 2, 1931, and shows that he owed that night $765. The next day he owed $825, and on January 7, the night before he took office for his last term, he owed $850. On January 8, the first day of his new term, he owed $860, and from January 12, 1931, to January 21, inclusive, ...
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