State, ex rel. James v. Lynn

• Decision Date: 06 May 1891
• Citation: 48 N.W. 881,31 Neb. 770
• Parties: STATE, EX REL. JOSEPH JAMES, v. GEORGE LYNN ET AL
• Court: Nebraska Supreme Court

48 N.W. 881

31 Neb. 770

STATE, EX REL. JOSEPH JAMES, v. GEORGE LYNN ET AL

Supreme Court of Nebraska

May 6, 1891

ORIGINAL proceeding in nature of quo warranto.

Action DISMISSED.

Joseph James, and M. A. Hartigan, for relator:

A justice of the peace is a township officer, and a vacancy in the office must be filled by the town board. (Comp. Stats 1887, ch. 18, art. 4, secs. 19, 47; sec. 19, p. 318; sec. 7 p. 387; so held of supervisor, State v. Taylor, 26 Neb. 580.) Relator was entitled to hold until his successor was elected and qualified. (Const., art. 6, secs. 18, 20; Maxwell, J. P. [1888 Ed.], 19.) As no successor qualified there was no vacancy, the acts of the board were void, and its appointee an intruder. (McCrary, Elections [3d Ed.] secs. 313, 328; Commonwealth v. Hanley, 9 Pa. 513; Borton v. Buck, 8 Kan. 308; Bond v. White, Id., 333; Graham v. Cowgill, 13 Id., 114; State v. Conn, 14 Id., 218; Page v. Hardin, 8 B. Mon. [Ky.], 648.) The statute provides the grounds of removal from office. (Comp. Stats., 1887, p. 310; Graham v. Cowgill, supra.) As to what issues can be tried by quo warranto: People v. Falkenbury, 2 Mich. 349; People v. Mayworm, 5 Id., 146; Clark v. People, 15 Ill. 217; State v. Beecher, 15 O., 723.

Bowen & Hoeppner (John A. Casto, for county board), contra:

A justice of the peace is a county officer, because (1) he is not mentioned among the township officers (Comp. Stats., 1887, p. 315, sec. 4); (2) his jurisdiction is co-extensive with the county (Code, sec. 904). Hence the county board should fill any vacancy in the office. Relator should have filed his bond January 3, 1889. (Comp. Stats., 1887, p. 92, sec. 5); failing to do so he lost any rights he might have had under the former so-called appointment. He must show a better title to the office than respondent. (State v. Stein, 13 Neb. 529, and cases cited.) His proper remedy was mandamus to compel the board to approve the bond.

OPINION

PER CURIAM.

This is an action of quo warranto brought by the relator to oust the defendant from the office of justice of the peace of the Fourth ward of the city of Hastings, and instate the relator therein.

It appears from the record that on the 13th day of January, 1888, the relator was appointed justice of the peace for the Fourth ward of the city of Hastings, and thereupon gave a bond, which was duly approved, and took the oath required by law. At the election in November, 1888, one E. C. Sawyer was elected justice of the peace for said ward, and on the 10th day of January, 1889, duly filed his bond with three sureties. For some cause, which does not appear, this bond was rejected by the county board. The relator on the 7th of that month filed a hold-over bond with three sureties, which, on the 10th of the month, was also rejected by the county board. Sawyer seems to have submitted to the decision of the board in refusing to approve his official bond, and asked that board to appoint him justice of the peace for said ward. He also filed a second bond for their approval in case he should be appointed. The board refused to appoint Mr. Sawyer, whereupon the relator, on the 10th day of January, 1889, seems to have filed a second bond which was also rejected by the county board on the 25th of that month, whereupon the said board declared the office vacant and proceeded to appoint the defendant, who gave a bond which was duly approved, and took the oath required by law and has since exercised the duties of the office. The relator claims the office by virtue of his appointment continuing until his successor should be elected and qualified.

Section 17, chapter 10, Compiled Statutes, provides that "When the incumbent of an office is re-elected or re-appointed, he shall qualify by taking the oath and giving the bond as above directed; but when such officer has had public funds or property in his...