State, ex rel. Thompson v. Donahue

• Citation: 135 N.W. 1030,91 Neb. 311
• Decision Date: 20 April 1912
• Docket Number: 16,802
• Parties: STATE, EX REL. WILLIAM T. THOMPSON, ATTORNEY GENERAL, RELATOR, v. JOHN J. DONAHUE, CHIEF OF POLICE OF THE CITY OF OMAHA, RESPONDENT
• Court: Supreme Court of Nebraska

135 N.W. 1030

91 Neb. 311

STATE, EX REL. WILLIAM T. THOMPSON, ATTORNEY GENERAL, RELATOR, v. JOHN J. DONAHUE, CHIEF OF POLICE OF THE CITY OF OMAHA, RESPONDENT

No. 16,802

Supreme Court of Nebraska

April 20, 1912

ORIGINAL application in quo warranto to oust respondent from the office of chief of police of the city of Omaha. Dismissed.

Complaint against respondent DISMISSED.

Grant G. Martin, Attorney General, George W. Ayres and Arthur F Mullen, for relator.

W. J Connell, contra.

SEDGWICK, J. REESE, C. J., concurring in the conclusion. ROSE, J., LETTON, J., dissenting. HAMER, J., dissenting in part and concurring in part.

OPINION

SEDGWICK, J.

These proceedings were begun in this court by the attorney general, upon the direction of the governor, under the provisions of sections 1a, 1b, ch. 71, Comp. St. 1911, commonly called the "Sackett Law." The respondent is chief of police of the city of Omaha. The action was begun in August, 1910. A referee was appointed to take the evidence and report his findings of fact and conclusions of law. The evidence taken before the referee is contained in nine large volumes of nearly 500 pages each. The questions presented are of more than usual importance. It being the first attempt to enforce the act under which it is brought, able counsel on both sides have given unusual attention to the case and have ably and carefully presented the numerous questions involved. The case has been greatly delayed, perhaps necessarily so under the circumstances, although ordinarily a case of this nature and importance should be promptly heard and determined. The counsel and the referee are to be commended for the thorough work which has been done. The referee made quite comprehensive findings of fact and conclusions of law, reporting that some of the charges against the respondent were not sustained by the evidence and that others were, and that the allegations of the information were sufficiently proved and that the prayer ought to be granted and the respondent removed from his office.

1. After the referee had filed his report, the respondent not having filed any motion for a new trial, the relator moved for judgment upon the report. It is now earnestly contended that a motion for a new trial is indispensable to entitle the respondent to any review of the proceedings by this court and that the motion for judgment ought to be sustained. This argument is derived principally from the provisions of sections 316 and 317 of the code. In Aultman, Miller & Co. v. Leahey, 24 Neb. 286, 38 N.W. 740, the case was tried to a jury in the district court and was brought to this court upon a petition in error. The motion for a new trial in the district court was filed on the fourth day after the verdict was rendered, and it was held that the motion was filed too late. The opinion contained what purports to be a quotation of section 316 of the code. The quotation, however, is inaccurate. Section 316 is as follows: " The application for a new trial must be made at the term the verdict, report, or decision is rendered, and, except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented." It does not appear from the opinion that the decision in the case was rendered by the district court more than three days before the motion for a new trial was filed, and the court manifestly construed the section to mean that the motion must be filed within three days after the verdict, whether any final decision had been rendered in the case or not. If this is a necessary construction of the statute, the construction ought not to be extended to the report of a referee. The language of the section forbids such a construction. The application for a new trial in the district court must be made at the term that the report of the referee is filed and within "three days after the verdict or decision was rendered." There is a substantial reason for omitting the report of the referee in this clause of the statute, as it would be impracticable in many cases to comply with it, if the motion was required to be filed within three days after the report was rendered. In this case the record shows that the respondent had no notice of an unfavorable report of the referee until more than three days after the report had been filed, and if the report of a referee had been included in the three days' limitation it would in many cases practically prohibit a review in this court of the judgment of the lower court in cases that come here by appeal. This contention of the relator, then, is without merit. The respondent filed exceptions to the report of the referee, and this appears to be the proper procedure to present to the court in which the reference is had the matters relied upon to avoid the findings and conclusions of the referee. In such cases the motion for a new trial is addressed to the trial court and calls the attention of the trial court to the supposed errors in the proceedings and judgment. In law cases such motion is necessary in order to obtain a review in the appellate court.

2. A motion was filed by the respondent which was treated by the counsel and the court as a general demurrer to the information. This motion was overruled, and the respondent now contends that this ruling was wrong and that the information fails to state any cause of action against the respondent. In this connection it is urged that this court has no jurisdiction to enforce this statute. We are, however, satisfied that this court has jurisdiction. The constitution prescribes the original jurisdiction of this court. Section 2, art. VI of the constitution, provides that this court shall have "such appellate jurisdiction as may be provided by law." Its duties as a court of review may be enlarged, but it has been frequently held that the legislature cannot increase its original jurisdiction. The statute under which the proceedings are brought directs that the proceedings shall be begun in this court by the attorney general when directed by the governor. This provision would no doubt be ineffective unless the character of the proceedings was such that this court would have original jurisdiction thereof under the provisions of the constitution. The first section of the act provides that under certain circumstances officers shall forfeit their office and be removed therefrom. There can be no doubt of the validity of this provision, at least when applied to offices created by the legislature; and when an officer has forfeited his office and is subject to removal therefrom, there can be no doubt that quo warranto is the correct remedy, and this court is given original jurisdiction in all cases of quo warranto by the section of the constitution above cited. Whether the provision of the second section of the statute would in any way limit the jurisdiction of the district courts in such cases, it is not necessary now to determine.

The next contention upon the motion was that the information does not charge any acts or omissions on the part of the respondent that would forfeit his right to the office under the provisions of the statute. The information is too long to copy in full. It alleges specific instances of wilful refusal on the part of respondent to make arrests for crimes when required by the mayor and board of fire and police commissioners to do so. Many of the allegations of the information are quite indefinite. No motion was made to require a more exact statement in any of the matters alleged. We will not discuss now this objection to the information. It is sufficient to say that, under our view of the law, the information was not subject to a general demurrer.

3. Many reasons are urged for the conclusion that this prosecution cannot be sustained. It is said that the act was never intended to apply to officers who are appointed by local authorities and who hold their offices at the will of the appointing power, if the duties of their office are neglected. It may be conceded that many substantial considerations are urged for such a construction of the statute. A discussion of other points in controversy will lead to a further consideration of this matter. The occasion for the statute is much more manifest in the case of officers who are elected or appointed for fixed terms and not subject to removal under other provisions of the statute upon similar grounds and for similar reasons as are contemplated in the statute in question, and yet the language of the first section of the act is so broad and general as to compel the construction that it must, in some instances at least, apply to inferior officers removable by the local authorities from which they receive their appointments. The section specifically names police officers and police commissioners, with the general words "or other officers," and these officers cannot in all cases be exempt from its provisions.

4. The next contention is that the evidence does not show that this respondent did "wilfully fail, neglect or refuse to enforce any law which it is made his duty to enforce." Notwithstanding the large amount of evidence taken by both parties, it appears that the evidence as to the principal facts upon which the determination of this case depends is not substantially conflicting. The contention of the state is that the respondent has failed in many respects that he has failed to enforce the liquor laws of the state and has neglected and refused to arrest and prosecute known violations of this law; that he has also failed to enforce the law against gambling; and that he has failed and refused to...