State v. Scott
| Decision Date | 06 January 1904 |
| Docket Number | 13,441 |
| Citation | 97 N.W. 1021,70 Neb. 681 |
| Parties | STATE OF NEBRASKA v. WINFIELD S. SCOTT. [*] |
| Court | Nebraska Supreme Court |
ORIGINAL proceeding in the nature of quo warranto to determine the right of respondent to exercise the duties of county engineer. Dismissed.
Proceedings DISMISSED.
Frank N. Prout, Attorney General, and Jesse B. Strode, for the state.
Arnott C. Ricketts, contra.
OLDHAM C. HASTINGS and AMES, CC, concur.
This is an original information in the nature of quo warranto, filed by the attorney general for the purpose of determining the right of respondent to exercise the duties of county engineer in Lancaster county, Nebraska. The information alleges that the respondent is the duly elected, qualified and acting surveyor of the county of Lancaster; that, as such officer, he is performing and threatens to exercise the duties of the office of county engineer, under and by virtue of chapter 32, laws of 1903, entitled "An act to constitute the county surveyor ex officio county engineer in addition to his powers and duties of county surveyor, and to define his powers and describe his duties as county engineer, and to repeal all acts and parts of acts inconsistent or in conflict with this act." The information sets forth that Lancaster county is a county of more than 50,000 population; that the act of the legislature of 1903, providing for the duties of county engineer, was passed in violation of section 15, article 3 of the constitution of Nebraska. The respondent, for answer, admits that he is the duly qualified and acting surveyor of Lancaster county; that, as such surveyor, he has exercised and intends to exercise the duties of county engineer of said county as provided for by the act of 1903, supra. He further alleges that there is no such office as that of county engineer; that the provisions of the act of 1903 did not create an additional office, but only imposed additional duties upon the office of the county surveyor, in counties having more than 50,000 population; that quo warranto will not lie to question his right to exercise the duties of county engineer.
The dispute arising upon the information of the relator and answer of the respondent is one of law and not of fact. Informations in the nature of quo warranto are provided for in but two sections of our statute; one is found in section 1, chapter 71, Compiled Statutes (Annotated Statutes, 1706). This section applies exclusively to claimants of the office which is usurped, invaded or unlawfully exercised by another, and plainly has no application to the case at bar, because no one else is claiming the right to exercise the duties of the office. The only provision on which this action could be grounded is found in section 704 of the code, and is as follows:
"An information may be filed against any person unlawfully holding or exercising any public office or franchise within this state, or any office in any corporation created by the laws of this state, or when any public officer has done or suffered any act which works a forfeiture of his office, or when any persons act as a corporation within this state without being authorized by law, or if, being incorporated, they do or omit acts which amount to a surrender or forfeiture of their rights and privileges as a corporation, or when they exercise powers not conferred by law."
The provisions of the above section applicable to public officers warrant an information "against any person unlawfully holding or exercising any public office" within the state, "or when any public officer has done or suffered any act which works a forfeiture of his office." There is no charge in the information that the respondent is unlawfully exercising the duties of the office of county surveyor, or that he has been guilty of any official misconduct which would work a forfeiture of that office; but the information is directed solely at his right to exercise the duties of county engineer, in...
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