State ex rel. Grosshans v. Gray

• Decision Date: 15 February 1888
• Citation: 23 Neb. 365,36 N.W. 577
• Parties: STATE EX REL. GROSSHANS v. GRAY ET AL.
• Court: Nebraska Supreme Court

23 Neb. 365

36 N.W. 577

STATE EX REL. GROSSHANS

v.GRAY ET AL.

Supreme Court of Nebraska.

February 15, 1888.

Syllabus by the Court.

In a city of the second class, containing a population of less than 5,000, the common council consisted of four councilmen, elected to said office. Upon the final passage of an ordinance to redistrict the city and increase the number of wards, upon the calling of the yeas and nays two answered and voted yea and two failed to vote, whereupon the mayor voted yea and declared the ordinance passed. The proceedings held to be void.

Incumbents superseded by councilmen elected under or by virtue of such void proceedings, are entitled to be restored by due process of law; but the legal organization of the city, and the acts of the councilmen de facto, within the purview of the statutes, will be recognized and upheld.

Quo warranto.

J. B. Cessna, for relator.

G. W. Bemis and Ryan Bros., for respondents.

COBB, J.

This is an original action of quo warranto, brought in this court by August Grosshans, who claims to be a councilman of the city of Sutton, against Clinton B. Gray, William H. Thompson, Leonard Jarrett, August Greenheid, George Honey, and Hiram Jones, who are the de facto members of the council of said city. The relator alleges that in April, 1886, he was duly elected a councilman of the city of Sutton, a city of the second class, for the term of one year, and until his successor should be elected and qualified, according to law, with allegations of his qualifications and eligibility to hold said office; that on the 7th day of March, 1887, the city council of Sutton attempted to pass an ordinance dividing said city of Sutton into four wards, instead of two, changing the boundaries of all wards, and providing for the election of six new councilmen, two holding over; that said ordinance passed by the vote of two councilmen and the mayor, the yeas and nays of the other two councilmen not being called and recorded; no other votes were cast for or against said ordinance; that under this pretended ordinance an election was held, April 5, 1887, at four different wards or precincts, at which election six pretended councilmen were declared elected: Clinton B. Gray in First ward, August Greenheid and William H. Thompson in Second ward, George Honey in Third ward, Leonard Jarrett and Hiram Jones in Fourth ward; that said Gray, Jones, and Honey have all received their certificates of election, accepted, and claim to exercise, and have been exercising, the duties of said office of councilmen, and have ousted and usurped the office as councilmen of said August Grosshans and C. W. Walther, etc. That, notwithstanding that the election of councilmen, April 7, 1887, was illegal and void, and that C. W. Walther and August Grosshans are still the legal councilmen of said city of Sutton, the said C. B. Gray, August Greenheid, W. H. Thompson, L. Jarrett, and Hiram Jones of said city, on the 11th day of April, 1887, and from thereon continuously hitherto, without any legal warrant, claim, or right, have used and exercised, and still do unlawfully use and exercise, the office of councilmen of said city, and claim to be councilmen in place of said August Grosshans and C. Walther, and to have, use, and enjoy all the rights, privileges, and franchises of said office, to the damage and prejudice of the rights of said city of Sutton and said relator, and also against the peace of the state; with prayer, etc. There was an answer by the respondents. The cause was referred to a referee to take testimony, find and report the facts to the court; who reported as follows:

“REPORT OF REFEREE.

I, Hiland H. Wheeler, appointed referee by an order of the supreme court of Nebraska to take testimony, and to find and report the facts to said court by September 1, 1887, in the above-entitled action, have the honor to submit the following: Pursuant to agreement of the respective parties, I took the testimony offered by the parties, September 13, 1887, J. B. Cessna, Esq., appearing for relator, and Robert Ryan, Esq., for respondents, they waiving all objections as to the time of hearing and making report; also agreeing that the copy of the record of the meeting of the village board of Sutton held April 10, 1886, might be considered as properly authenticated. Upon consideration of the pleadings and the evidence, I find as follows: (1) That on or about March 22, 1886, the town of Sutton, Clay county, Nebraska, was organized as a city of the second class, with two wards and four councilmen, two in each ward, and was under said organization in April, 1886. (2...