State ex rel. Thayer v. Boyd

• Decision Date: 17 February 1892
• Citation: 51 N.W. 602,31 Neb. 682
• Parties: STATE EX REL. THAYER v. BOYD.
• Court: Nebraska Supreme Court

31 Neb. 682

51 N.W. 602

STATE EX REL. THAYER

v.BOYD.

Supreme Court of Nebraska.

Feb. 17, 1892.

For majority opinion, see 48 N. W. Rep. 739.

MAXWELL, C. J., ( dissenting.)

This case was submitted to this court on a demurrer to the answer of the defendant. The question involved in that answer related entirely to the citizenship of the defendant, and upon the demurrer being sustained the defendant had the right to amend his answer, if he so desired. Section 146 of the Code provides: “If the demurrer be sustained the adverse party may amend, if the defect can be remedied by way of amendment with or without costs, as the court, in its discretion, shall direct.” The answer was clearly amendable; and the right to amend in such cases has always, so far as I am aware, been sustained. When I prepared my opinion, in May last, I supposed that leave to amend would be given, if desired, and therefore expressly say, in that opinion, that I have not examined the question as to the succession in case Boyd was removed. The question of the succession seemed to be of considerable importance; and as the court at the outset had made the order permitting the relator to institute the action so far as conditional that it would permit the lieutenant governor to intervene, if he saw fit to do so, it was but reasonable to expect, therefore, that in case the defendant was found not entitled to hold the office the case would be set down for argument as to the proper person to succeed him, and that no conclusion would be reached until after such argument. When the majority opinion was filed, however, it appeared that my associates did not so understand the case, but proceeded to decide that the relator was entitled to the office. The matter required time for proper examination; and as the principal question, viz., the citizenship of the defendant, must be determined by the supreme court of the United States, I have deferred filing my views upon the questions indicated until that great tribunal had determined the main question, which it has now done in a manner creditable to the court. All questions relating to citizenship were authoritatively settled by that opinion, and need not be noticed here.

I think the majority of the court erred in holding that the relator had a right to continue in office. Section 1, art. 5, of the constitution, provides “that the executive department shall consist of a governor, lieutenant governor, secretary of state, auditor of public accounts, treasurer, superintendent of public instruction, attorney general, and commissioner of public lands and buildings, who shall each hold his office for the term of two years from the first Thursday and [after] the first. Tuesday in January next after his election, and until his successor is elected and qualified: provided, however, that the first election of said officers shall be held on the Tuesday succeeding the first Monday in November, 1876, and each succeeding election shall be held at the same relative time in each even year thereafter. The governor, secretary of state, auditor of public accounts, and treasurer shall reside at the seat of government during their terms of office, and keep the public records, books, and papers there, and shall perform such duties as may be required by law.” Section 2 provides “that no person shall be eligible to the office of governor or lieutenant governor who shall not have attained the age of thirty years, and been for two years next preceding his election a citizen of the United States and of this state. None of the officers of the executive department shall be eligible to any other state office during the period for which they shall have been elected.” We are told in the majority opinion: “The inquiry is not whether he [Boyd] received a plurality of votes, but did he have the qualifications to be elected? * * * ‘Elected,’ as used in the constitution, means the choosing of a person eligible to be chosen.” This language, if I understand it correctly, means that the voters of the state, although they may every one cast their votes for an individual for the office of governor, and the person so chosen may take the oath and give the bond required by law, and enter upon the duties of the office, yet the incumbent may set himself up as judge, jury, and beneficiary in the case, and for some alleged cause refuse to surrender the office to the person lawfully chosen by the electors of the state. He may not only do this, but fill his apartments with armed men to assert his alleged rights in the premises, in defiance of the will of the people, and thus bring reproach upon republican institutions. If the governor whose term has expired may still continue in office after the expiration of his term, when another has been elected to succeed him, and keep the person elected out of the office, then every other officer in the state may do the same. If this is established as sound law, it will be found to be far-reaching in its scope. If it is a proper rule to apply in the construction of a state constitution, it will be found equally applicable when applied to the constitution of the United States, and thus become settled law that the incumbent in an office may retain the same notwithstanding another has been chosen to fill the...