State ex rel. Good v. Conklin

• Decision Date: 18 June 1934
• Docket Number: 29204
• Citation: 255 N.W. 925,127 Neb. 417
• Parties: STATE, EX REL. PAUL F. GOOD, ATTORNEY GENERAL, RELATOR, v. HARRY P. CONKLIN, RESPONDENT
• Court: Nebraska Supreme Court

255 N.W. 925

127 Neb. 417

STATE, EX REL. PAUL F. GOOD, ATTORNEY GENERAL, RELATOR, v. HARRY P. CONKLIN, RESPONDENT

No. 29204

Supreme Court of Nebraska

June 18, 1934

Original proceeding in quo warranto by the state, on relation of the attorney general, to oust respondent from the office of commissioner of public lands and buildings. Proceeding dismissed.

Proceeding dismissed.

Syllabus by the Court.

1. Except in the exercise of appellate jurisdiction, the supreme court is one of limited and enumerated powers.

2. Original jurisdiction in quo warranto is conferred upon the supreme court of Nebraska by the state Constitution.

3. Quo warranto, as used in the constitutional provision conferring upon the supreme court original jurisdiction, when directed to an executive state officer, is a civil proceeding to try the right or title under which he claims to hold the office not to test the legality of his official acts.

4. An eligible, duly elected executive state officer who properly qualified by oath and bond and entered upon the duties of his office is not removable by quo warranto. for subsequent felonies of which he has not been convicted in criminal prosecutions in a court of competent jurisdiction.

5. In quo warranto in the supreme court to oust an executive state officer from office, he is not entitled to a jury trial as a matter of right.

6. The supreme court may decline to entertain original jurisdiction to oust an executive state officer from office, where the information fails to state facts sufficient to constitute a cause of action in the nature of quo warranto.

Original proceeding in nature of quo warranto by the State, on the relation of Paul F. Good, Attorney General, against Harry P. Conklin.

Proceeding dismissed.

Paul F. Good, Attorney General, Daniel Stubbs and William H. Wright, for relator.

Beghtol, Foe & Rankin and Lee Basye, for respondent.

Heard before ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and LESLIE and RYAN, District Judges.

OPINION

ROSE, J.

This is an action in the nature of quo warranto. It was brought originally in the supreme court by the state of Nebraska on the relation of the attorney general to remove Harry P. Conklin, respondent, from the executive state office of commissioner of public lands and buildings for alleged criminal acts as a public officer.

The grounds upon which a writ of ouster is sought may be summarized as follows: March 18, 1933, respondent entered into a conspiracy with his deputy, Herbert Wehn, and a public employee named George Lane, to defraud the state and in pursuance of that conspiracy and unlawful purpose obtained from the state by false pretenses $ 1,151 and appropriated to his own use the state funds so procured; May 12, 1933, executed and delivered to the auditor, secretary of state and treasurer a fraudulent voucher for excessive compensation of state house janitors and other state employees and thereafter committed a similar offense each month until and including February 20, 1934; procured the issuance and payment of state warrants on the excessive vouchers, exacted from employees, and converted to his own use the difference between lawful compensation and excessive vouchers, thus defrauding the state of the amount so exacted and converted; February 1, 1933, and on subsequent dates, corruptly and lawlessly exacted for appointment and retention of state employees various sums of money itemized in the information; February 23, 1933, and on subsequent dates, collected and converted to his own use $ 539.50 in rentals for rooms used for a restaurant in the state capitol building; received for ice manufactured by and belonging to the state and converted to his own use $ 36.

It is charged in the information that each of the unlawful acts pleaded by relator was committed by respondent pursuant to the conspiracy with Wehn or with both Wehn and Lane. The details of the official misconduct with which respondent is charged are pleaded in the information, but the foregoing statement is sufficient to indicate the grounds on which his removal from office is demanded.

The authority of the supreme court to remove respondent from office on the grounds charged in the information is challenged on his behalf by objections to jurisdiction. If the facts pleaded by relator are insufficient to state a cause of action in the nature of quo warranto, it is unnecessary to entertain jurisdiction. Except in the exercise of appellate jurisdiction, the supreme court is one of limited and enumerated powers. State v. Hall, 47 Neb. 579, 66 N.W. 642. Original jurisdiction of the supreme court in quo warranto came from the Constitution, which provides:

"The supreme court shall have jurisdiction in all cases relating to the revenue, civil cases in which the state is a party, mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as may be provided by law." Const. art. V, sec. 2. See State v. Boyd, 31 Neb. 682.

What "quo warranto" means in this grant of original jurisdiction, when the writ is directed to an executive state officer, indicates the measure of the powers conferred upon the supreme court, except as extended by other provisions of the Constitution. The supreme court itself, in the exercise of original jurisdiction, can make no new law nor add any new ground to oust an executive state incumbent from office. No exigency or emergency can justify a judicial usurpation to oust an executive state officer for crimes committed by him in the exercise of official power but of which he has not been convicted. The general understanding of "quo warranto," as the term is used in that part of the Constitution quoted, is that it is a writ employed to try the right or title under which a public or corporate office or franchise is claimed, not to test the legality of a public officer's acts. Bailey, in his work on extraordinary legal remedies, says of quo warranto:

"The writ is employed to try the right of a person claiming to an office, not to test the legality of his acts." 2 Bailey, Habeas Corpus, 1253, sec. 318.

Referring to quo warranto, the supreme court of Illinois held:

"This writ is generally employed to try the right a person claims to an office, and not to test the legality of his acts." People v. Whitcomb, 55 Ill. 172, 176.

On the same subject the supreme...