State ex rel. Richards v. McMillen

• Decision Date: 15 February 1888
• Parties: STATE EX REL. RICHARDS v. MCMILLEN.
• Court: Nebraska Supreme Court

23 Neb. 385

36 N.W. 587

STATE EX REL. RICHARDS

v.MCMILLEN.

Supreme Court of Nebraska.

February 15, 1888.

Syllabus by the Court.

The relator was elected to the office of county treasurer, at the annual election held November 3, 1885. At that date he had been a resident of the state for five months only, but was otherwise eligible. At the commencement of the term, his residence in the state had been continuous for seven months. Held that, being ineligible to such election at the date thereof, under a fair construction of section 1, art. 7, Const., and section 64, c. 26, Comp. St., such ineligibility was not removed, for the purposes of that election, by reason of six months' continuous residence previous to the commencement of the term.

Quo warranto.

Thurston & Hall, for relator.

Alfred Bartow and O. P. Mason, for respondent.

COBB, J.

This is an information in the nature of a quo warranto by De Forrest Richards, who claims to be the county treasurer of Dawes county, by an election held November 3, 1885, against Hiram G. McMillen, incumbent, by virtue of an election first held on the organization of said county, June 27, 1885. There is no question made in the pleadings or papers, and it may be stated as admitted by the parties that the relator was a candidate for county treasurer at the annual election of 1885; that he received the highest number of votes cast for that office; that a certificate of election was duly delivered to him; that he gave a sufficient bond as county treasurer, which was approved by the county commissioners; and that he took the necessary oath of office and demanded the records, papers, and other property of the office of incumbent, which were refused. It is also admitted that the respondent was lawfully elected to the office at the first election held on the organization of the county, June 27, 1885; that he was regularly qualified and entitled to hold the office until the next general election for the same office, to be held in other counties, as provided by law then in force, and until his successor should be duly elected and qualified. His term was fixed by authority of the provisions of section 14, art. 2, c. 17, Comp. St., that: “All county and precinct officers elected at the first election, as herein provided, shall continue to hold their respective offices until the next general election held for the same offices in other counties, as provided by the election law in force at that time, and until their successors are elected and qualified.” The salient question presented is that of the legal qualification of the relator as a citizen and elector at the date of his said election. Was he competent to be elected to the office, having six months' consecutive residence in this state, within the meaning of the election laws?

Section 64 of chapter 26 of the election law provides that “the election of any person to any public office, the location or relocation of a county-seat, or any proposition submitted to a vote of the people, may be contested: First. For malconduct, fraud, or corruption on the part of the judges of election in any precinct, township, or ward, or of any board of canvassers, or any members of either board, sufficient to change the result. Second. When the incumbent was not eligible to the office at the time of the election,” etc. Section 1 of article 7 of the constitution of this state provides that “every male person of the age of 21 years or upwards, belonging to either of the following classes, who shall have resided in this state six months, and in the county, precinct, or ward for the term provided by law, shall be an elector: First. Citizens of the United States,” etc. The relator in this proceeding now becomes the incumbentunder the second provision of section 64, above quoted; and it is assumed from the words of the statute that the grounds of contest there provided were intended to be sufficient grounds of removal, if apparent on evidence; and that the relator, therefore, must have resided in this state six months consecutively, at the time of the election, to have been eligible to the office. It is established...