State ex rel. Walters v. Oleson

• Decision Date: 18 December 1883
• Parties: STATE EX REL. WALTERS v. OLESON.
• Court: Nebraska Supreme Court

15 Neb. 247

18 N.W. 45

STATE EX REL. WALTERS

v.OLESON.

Supreme Court of Nebraska.

Filed December 18, 1883.

Quo warranto.

W. F. Bryant and Fred. J. Fox, for relator.

R. E. W. Sparger, for respondent.

COBB, J.

This is a suit in the nature of an application for a writ of quo warranto, by Neal Walters, who claims to be entitled to the office of sheriff of Knox county, against Henry Oleson, the actual incumbent of said office. It appears from the record that the relator was duly elected to said office at the general election of 1881, and entered upon the duties of said office, and continued to discharge them until on or about the twenty-ninth day of December, 1882, when a complaint was made before the board of county commissioners of Knox county, charging the said relator with official misdemeanors in his said office of sheriff of Knox county; that upon a trial of said charge the relator was found guilty by said board, and a judgment rendered by said board, removing and ousting him from the said office. Section 1 of article 11 of chapter 17 of the Compiled Statutes provides as follows:

“Section 1. All county officers, including justices of the peace, may be charged, tried, and removed from office for official misdemeanors, in the manner, and for the causes following: First, for habitual or willful neglect of duty; second, for gross partiality; third, for oppression; fourth, for extortion; fifth, for corruption; sixth, for willful maladministration in office; seventh, for conviction of a felony; eighth, for habitual drunkenness.

Sec. 2. Any person may make such charge, and the board of commissioners shall have exclusive original jurisdiction thereof by a summons.”

It was under these provisions and for the fifth cause, as therein numbered, that the relator was charged, tried, and removed from office. He urges now that the above provisions are in conflict with the provisions of section 1, art. 6, of the constitution of the state, which provides as follows:

“Section 1. The judicial power of this state shall be vested in a supreme court, district courts, county courts, justices of the peace, police magistrates, and in such other courts, inferior to the district court, as may be created by law, for cities and incorporated towns.”

It cannot be denied, I think, that under the English system, impeachment, or, more properly speaking, the trial of an impeached person, is an exercise of judicial power. “In that kingdom,” says Story, (Story, Const. 790,) “all the king's subjects, whether peers or commons, are impeachable in parliament; though it is asserted that commoners cannot now be impeached for capital offenses, but for misdemeanors only,” etc. But in this country, impeachment has always been confined to civil office-holders; and while in one sense it is as much a judicial inquiry to try a man for accepting a bribe, where the penalty upon his conviction is only that of deprivation from holding an office, as though it were his incarceration in the penitentiary. Yet there is a sense in which the object of such inquiry would in the latter case be conceded to be judicial, while in the former it well might be...