State ex rel. Simeral v. Seavey

• Decision Date: 23 November 1887
• Citation: 22 Neb. 454,35 N.W. 228
• Parties: STATE EX REL. SIMERAL v. SEAVEY.
• Court: Nebraska Supreme Court

22 Neb. 454

35 N.W. 228

STATE EX REL. SIMERAL

v.SEAVEY.

Supreme Court of Nebraska.

November 23, 1887.

Syllabus by the Court.

The appointment of the respondent as chief of police of the city of Omaha by the board of fire and police commissioners appointed by the governor under section 145 of an act entitled “An act incorporating metropolitan cities, and defining, regulating, and prescribing their duties, powers, and government,” approved March 30, 1887, under the facts and circumstances as set out in the answer, held a legal appointment within the scope and meaning of the said act.

The provision of the above-mentioned act, whereby it is made the duty of the governor to appoint a board of fire and police commissioners for each city of the metropolitan class, held not to be repugnant to the constitution.

Quo warranto.E. W. Simeral, G. W. Ambrose, and I. C. Cowin, for relator.

George B. Lake, for respondent.

COBB, J.

This is an original proceeding in this court by Edward W. Simeral, county attorney of Douglas county, relator, against Webber S. Seavey, respondent. The complaint is, in substance, an information in the nature of a quo warranto; its general object, to obtain a judgment against the respondent upon his right to execute the office of chief of police of the city of Omaha. It alleges that the city of Omaha is a city of the metropolitan class; that, under and by virtue of the laws governing cities of the metropolitan class, there was appointed by the governor a fire and police commission, consisting of four persons; that the members of said board of fire and police commissioners, at and before the time thereinafter set forth, neglected and refused to enter into a good and sufficient bond for the faithful performance of their duties, as the ordinances of said city required, and long before any bond was approved by the authorities of said city said commissioners pretended to and did proceed to make appointments of firemen and policemen; that at the times thereinafter set forth no rules and regulations governing said board of fire and police commissioners had been prescribed by ordinance by the mayor and council of said city; that on the nineteenth day of May, 1887, said defendant was by said board of fire and police commissioners appointed chief of police of said city of Omaha, but that at the time of said appointment the bonds of said commissioners had not been approved by said city council, nor had any rules and regulations by ordinance been adopted by said council governing the removal and appointment of chief of police; and that said commissioners, without law or authority, removed Thomas Cummings, who at that time was acting as chief of police, and appointed in his stead said defendant, who, petitioner alleges, is now, and has been ever since his pretended appointment, wrongfully and unlawfully exercising and usurping the functions of said office; and that said council has never approved or confirmed the said appointment of said defendant as by law required.

By way of amendment, said relation also alleges that before the passage of the act entitled “An act to incorporate metropolitan cities,” etc., approved March 30, 1887, the city of Omaha was a city of the first class, under the laws of the state of Nebraska then in force with respect thereto; that when said act relating to metropolitan cities took effect the city of Omaha had a police force and city marshal, as then provided by act with respect to cities of the first class, and ordinances of the city of Omaha thereunder; that the legislature adjourned sine die on the first day of April, 1887, and said legislature had not been in session since; that the said appointments made by the governor, as aforesaid, were made after the adjournment of said legislature, and the appointments were not made with the advice and consent of the senate;that the said appointments were therefore unconstitutional and void: that the offices to which said appointments were pretended to be made were original offices and original appointments, and not a vacancy or appointment to fill a vacancy; that the said pretended board of fire and police have appointed a large number of police for said city; that at the time of the pretended appointment and reappointment of said defendant herein, the said Cummings was acting as chief of police, and all other policemen continued in their office; and at the time of the pretended appointment and reappointment of said defendant, and the appointment of said policemen, there were no funds whatever provided by the mayor and council to pay the salary of said defendant, or the salary of said other policemen, and at no time since the passage of the act with respect to metropolitan cities have there been any funds whatever provided by the mayor and council to pay the salary of said defendant, or the salaries of said policemen; and that at the time of the appointment of the defendant, and of the other policemen, by said board, the mayor and council of said city, under the law, could not provide any funds to pay such salaries, as the full extent of their authority, when exercised in behalf of raising a police fund, realized only a sufficient amount to pay the salaries of the policemen then in office, and the number appointed by said board far exceeded the amount of funds for salaries which it is possible for the mayor and city council to provide under the law, etc.

The respondent entered a voluntary appearance and answered. I quote from the answer as the foundation of respondent's claim to the said office:

“ First. He admits that, under and by virtue of the law of the state of Nebraska governing metropolitan cities, there was duly appointed by the governor of said state a fire and police commission, consisting of four persons, viz., L. M. Bennett, Christian Hartman, George I. Gilbert, and Howard B. Smith; and in this behalf the defendant alleges that under said law the mayor of the city of Omaha became and is ex officio a member and the chairman of said board; that shortly after their said appointment to said board, on the tenth day of May, 1887, the said Bennett, Hartman, Gilbert, and Smith, each took and subscribed an oath to support the constitution of the United States, the constitution of the state of Nebraska, and faithfully and impartially perform the duties of the office of commissioner of fire and police according to law, and to the best of his ability; and also that he would, to the best of his ability, discharge his duties as a member of the board of fire and police of the city of Omaha, and that in making appointments, considering promotions or removals, he would not be guided or actuated by political motives or influences, but would consider only the interests of the city, and the success and effectiveness of said departments of fire and police; that said oaths were filed with the city clerk of said city, May 10, 1887, whereupon said Bennett, Hartman, Gilbert, and Smith, together with the mayor of said city, organized said board, and entered upon the duties thereof, which they have ever since continued to perform.

“ Second. That at the time of the appointment and qualification, as aforesaid, of the members of said board, there was no law or ordinance of said city requiring of them official bonds; that the first requirement of this kind was by ordinance of said city approved June 15, 1887; that immediately after the passage and approval of said ordinance, requiring such bonds, all of the said commissioners appointed as aforesaid gave good and sufficient bonds in exact compliance with the requirements of said ordinance; that the bonds of said Bennett and Hartman were approved by said city council on or about the ninth day of August, 1887, while those of said Gilbert and Smith were rejected for the sole reason that the names of the sureties who had signed the bonds, respectively, did not also appear in the body of those instruments as well; that, immediately upon the rejection of the bonds of said Gilbert and Smith for this technical reason, they each filed new bonds obviating said objection,and in all respects complying with the requirements of said ordinance in this regard; that notwithstanding these new bonds were duly presented to said city council, August 30, 1887, that body has failed, up to the present time, either to approve or reject them.

“ Third. That while it is true, as relator alleges, that no rules and regulations for the government of said board of fire and police commissioners have been prescribed by an ordinance of said city, yet it is true that the said board of fire and police commissioners did, on the sixteenth day of May, 1887, prepare and adopt certain rules and regulations for the guidance of the officers and men of the fire and police department of said city, and for the appointment, promotion, removal, trial, and discipline of said officers and men, and such as said board considered proper and necessary; which said rules and regulations were by said board duly submitted to said city council for its action on the seventeenth day of May, 1887, but respecting which the said city council has, as yet, taken no action, either of approval or rejection.

“ Fourth. That defendant was appointed chief of police of said city by said board, at or about the time alleged in the petition, and before the members of said board had given their bonds as aforesaid; that at the time he was so appointed he alleges there was no law requiring, as a requisite of qualification, that they should give bonds; nor was there any ordinance of said city to that effect till long after said appointment of defendant was made. And defendant also admits that the said city council has never appointed, or confirmed the appointment of, said defendant to said office of chief of police of said city, the duties of which he is now exercising under and by virtue of the appointment as aforesaid,”--with a general denial of all the other...