State ex rel. Johnson v. Hagemeister

• Decision Date: 16 December 1955
• Docket Number: No. 33806,33806
• Citation: 161 Neb. 475,73 N.W.2d 625
• Parties: STATE of Nebraska ex rel. Ernest M. JOHNSON, Relator, v. Bruce HAGEMEISTER, Respondent.
• Court: Nebraska Supreme Court

Page 625

73 N.W.2d 625

161 Neb. 475

STATE of Nebraska ex rel. Ernest M. JOHNSON, Relator, v. Bruce HAGEMEISTER, Respondent.

No. 33806.

Supreme Court of Nebraska.

Dec. 16, 1955.

Syllabus by the Court.

1. One who sues to recover a public office has the burden of proving every fact essential to his title, his recovery depending upon the strength of his own title and not upon the weakness of the claim of his adversary.

2. The Legislature's action, in confirming or rejecting a nomination or appointment of the Governor, is an executive rather than a legislative act.

3. The Nebraska Constitution expressly provides that 'the Legislature shall determine the rules of its proceedings.' This provision does not restrict the power given to the mere formulation of standing rules, or to the proceedings of the body in ordinary legislative matters. In the absence of constitutional restraints, and when exercised by a majority of a constitutional quorum, such authority extends to the determination of the propriety and effect of any action as it is taken by the body as it proceeds in the exercise of any power, in the transaction of any business, or in the performance of any duty conferred upon it by the Constitution.

4. When the Legislature finally confirms an appointment made by the Governor it is without power thereafter to revoke the confirmation. However under the rules of the Legislature, which the Constitution authorized it to adopt, no vote on the confirmation of an appointment to office is final, and consequently there is no such confirmation, until a motion to reconsider an affirmative vote thereon has been disposed of adversely or the time for the making thereof has expired without such a motion being made.

Charles A. Fisher, Ernest M. Johnson, pro se, Chadron, for relator.

Clarence S. Beck, Atty. Gen., Clarence A. H. Meyers, Deputy Atty. Gen., for respondent.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

This is an original action in quo warranto brought by relator, Ernest M. Johnson, for the purpose of ousting and excluding the respondent, Bruce Hagemeister, from a position of membership on the Board of Education of State Normal Schools of the State of Nebraska and to have the relator adjudged entitled to the position and admitted to the same, with all the rights and privileges thereof.

The relator, on February 10, 1955, requested the Attorney General of the state to bring this action but he refused to do so. Consequently the relator brought it. In view thereof, 'He is required to show that his title to the office is better than the incumbent, and must recover, if at all, upon the strength of his own title, and not upon the weakness of the claim of his adversary.' State ex rel. Birkhauser v. Moores, 52 Neb. 634, 72 N.W. 1056, 1057. See also, Barrett v. Duff, 114 Kan. 220, 217 P. 918; Wooton v. Wheeler, 149 Ky. 62, 147 S.W. 914.

We accepted original jurisdiction pursuant to and by authority of Article V, section 2, Constitution of Nebraska, which provides, insofar as here material, that: 'The supreme court shall have jurisdiction in * * * quo warranto, * * *.' See, also, section 24-204, R.R.S.1943 , which provides: 'The Supreme Court shall have original jurisdiction in * * * quo warranto * * *.' The right to file is provided for by section 25-21,121, R.R.S.1943.

In 1920 the Board of Education of State Normal Schools was established by the adoption of Article VII, section 13, Constitution of Nebraska. It provided: 'The general government of the state normal schools, as now existing, and such other normal schools as may be established by law, shall be vested, under the direction of the Legislature, in a board of seven members to be styled Board of Education of State Normal Schools, six of whom shall be appointed by the Governor, with the advice and consent of the senate, two each for a term of two, four, and six years, and two each biennium thereafter for a term of six years, and the State Superintendent of Public Instruction shall be a member exofficio.' See, also, section 85-301, R.R.S.1943. We shall hereinafter refer to the Board of Education of State Normal Schools as the board.

The terms of the original members of the board all began on January 1, 1921. See Article XVII, section 1, Constitution of Nebraska, which provides: 'The several amendments passed and submitted by this Convention when adopted at the election shall take effect on the first day of January, 1921, * * *.' Consequently all subsequent terms of the several members begin on January 1 of odd-numbered years.

In the fall of 1953, during recess of the Legislature, a vacancy occurred in the membership of the board by reason of the death of Edwin D. Crites of Chadron, Nebraska. The term of his membership on the board ran to January 1, 1955.

Article IV, section 11, Constitution of Nebraska, provides: 'In case of a vacancy during the recess of the senate, in any office which is not elective, the governor shall make a temporary appointment until the next meeting of the senate, when he shall nominate some person to fill such office; and any person so nominated, who is confirmed by the senate, (a majority of all the senators elected concurring by voting yeas and nays), shall hold his office during the remainder of the term, and until his successor shall be appointed and qualified.'

Then Governor Robert B. Crosby, under and pursuant to the authority granted him, on November 18, 1953, appointed relator to fill the vacancy on the board caused by the death of Crites. Relator took the oath of office and filed it in the office of the Secretary of State on November 30, 1953. He thereafter occupied the office and performed the duties thereof. Subsequently, at its Sixty-sixth (Extraordinary) Session, the Legislature, on April 28, 1954, confirmed relator's appointment to fill the vacancy.

With the term in which the vacancy occurred ending December 31, 1954, with the Legislature meeting in regular session at 12 o'clock noon on January 4, 1955 (see Article III, section 10, Constitution of Nebraska), and with the new Governor not taking office until January 6, 1955 (see Article XVII, section 5, Constitution of Nebraska), the then Governor, Robert B. Crosby, on October 20, 1954, apponted relator to a six-year membership on the board, the term running from January 1, 1955, to January 1, 1961.

On Friday, January 28, 1955, the Sixty-seventh Session of the Legislature, that being its nineteenth legislative day, received a report from its committee on committees reporting favorably on relator's appointment. On the same day his appointment was confirmed by the Legislature. However, on Monday, January 31, 1955, that being its twentieth legislative day, the Legislature adopted a motion made by Senator Bixler to reconsider the action it had taken on Friday, January 28, 1955, confirming the appointment of relator to the board. The Legislature, after taking such action, immediately thereafter adopted another motion made by Senator Bixler that relator not be confirmed. Senator Bixler had voted for relator's confirmation on January 28, 1955.

Thereafter, on February 2, 1955, Governor Victor Anderson nominated respondent to the term of membership on the board running from January 1, 1955, to January 1, 1961. This nomination the Legislature confirmed on February 28, 1955. Thereafter, on March 2, 1955, the Governor appointed and commissioned respondent who thereupon took the oath of office on March 8, 1955, and filed it in the office of the Secretary of State on March 9, 1955. Respondent is presently occupying the office and performing the duties thereof.

This raises the question, did the Legislature have the right to reconsider its action of Friday, January 28, 1955, confirming the relator's appointment on Monday, January 31, 1955, its next legislative day, no question being raised as to the personal qualifications of either relator or respondent?

We think the appointive power here involved requiring concurrent action of the Governor and the Legislature, although not necessarily in point of time, is executive or administrative in character. As stated in People v. Shawver, 30 Wyo. 366, 222 P. 11, 24: 'It is usually held that the Senate, in the exercise of its power to consent to or confirm executive appointments, performs an executive or administrative rather than a legislative function.' See, also, 22 R.C.L., Public Officers, § 73, p. 424.

'The senate's action, in confirming or rejecting the governor's nominations, is an executive rather than a legislative act.' 81 C.J.S., States, § 68, p. 1001.

Article II, section 1, Constitution of Nebraska, provides: 'The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.'

While our Constitution thus divides the government of the state into three distinct departments, and prohibits any person or collection of persons in one department from exercising any power properly belonging to either of the others, however, it expressly recognizes that the provisions in the Constitution transgress this separation and, insofar as they do, the separate departments would have such power. Consequently the Legislature had the power to confirm the appointment although executive or administrative in character.

The Constitution also provides: '* * * the Legislature shall determine the rules of its proceedings * * *.' Art. III, section 10, Constitution of Nebraska. It will be observed that this authority does not limit itself to any particular power which the Legislature has or is given but is broad and unlimited in its scope. As stated in Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, 968: 'The Constitution exp...