State ex rel. Upton v. Weatherby

• Decision Date: 13 May 1885
• Citation: 23 N.W. 512,17 Neb. 553
• Parties: THE STATE OF NEBRASKA, EX REL. HENRY UPTON, WOODS CONES, WILSON HALL, RICHARD R. SMITH, WILLIAM H. MCDONALD, AND C. C. WILSON, v. EDWARD P. WEATHERBY, HERMAN R. MEWIS, AND H. S. BECK, RESPONDENTS
• Court: Nebraska Supreme Court

23 N.W. 512

17 Neb. 553

THE STATE OF NEBRASKA, EX REL. HENRY UPTON, WOODS CONES, WILSON HALL, RICHARD R. SMITH, WILLIAM H. MCDONALD, AND C. C. WILSON, v. EDWARD P. WEATHERBY, HERMAN R. MEWIS, AND H. S. BECK, RESPONDENTS

Supreme Court of Nebraska

May 13, 1885

ORIGINAL action in quo warranto.

Judgment of ouster denied, and relation dismissed.

Brome & Durland, for relators.

E. P Holmes, for respondents.

OPINION

REESE J.

The electors of school district number two of Pierce county elected six trustees at the annual meeting in April, 1885, as district officers, instead of retaining a board of three as formerly. This action was had under the provisions of section one of subdivision six of the school law, as amended by the act of 1885. Laws 1885, Ch. 79. Comp. Stat., Ch. 79. On the 11th day of April, and within ten days after the election, the six trustees met within the district, and from their own number elected a director, moderator, and a treasurer. Thereupon each of the trustees filed with the director thus elected their written acceptance of the office of trustee to which he had been elected by the annual meeting. The old district board refused to surrender to them their respective offices, claiming that under the provisions of the amendment of 1885 their official terms did not expire until the second Monday in July. It being of importance to the district that the proper officers should act, the question of their right to hold over is submitted to this court for determination by a proceeding in the nature of quo warranto.

On the part of the relators it is insisted that the corporation district has undergone a complete change by the action of the annual meeting, and that the old corporation has virtually terminated and a new one has been created, and that, of necessity, all official terms have expired. The official terms of the officers doubtless have or will expire with the end of the school year, but we do not agree with counsel that the corporation has of itself terminated, or undergone any very material change. True, the powers of the board of trustees may be somewhat greater than the powers of the three directors would have been, but the district, with all its rights and powers, will remain the same as before; the only difference being a change in the manner of transacting its business and in the method of government. The question then is, who are now the proper officials of the district, with power to bind it by contract and transact its business?

By the law of 1885, which took effect upon its approval, section one of subdivision two was amended so as to read as follows "The annual school meeting of each school district shall be held at the school-house, if there be one, or at some other suitable place within the district, on the first Monday of April of each year. The officers elected as hereinafter provided shall take possession of the office to which they have been elected upon the second Monday of July, and the school year shall commence with that day; Provided, That all school officers whose term of office would otherwise expire upon the first Monday of April, shall have their term of office extended until the second Monday of July following." Laws 1885, Ch. 79. Comp. Stat., Ch. 79. By this section, the "school year" is changed so as to commence and terminate on the second...