ERROR
from the district court for Hitchcock county. Tried below
before NORRIS, J. Affirmed.
AFFIRMED.
W. R
Starr and John T. McClure, for plaintiff in error.
Webster
S. Morlan, contra.
OPINION
NORVAL, C. J.
This
was a proceeding instituted before the county board of
Hitchcock county, by an elector of that county, to remove
from the office of county clerk one W. A. Stewart, under the
provisions of article 2, chapter 18, Complied
Statutes, to which office he had been duly elected. The
complaint filed contained two charges, one accusing him of
having permitted one John W. Cole to take certain ballots of
Hitchcock county, cast at the last general election, from the
office of said clerk and mutilate them, to prevent them from
being used as evidence in a certain quo warranto proceeding
then pending in the district court of said county, the other
making the same charge, except that he is accused of aiding
and assisting said Cole and one Brown in so taking said
ballots. On a hearing Stewart was adjudged guilty of a
willful neglect of duty and removed from office, and he
brings the record here on error from the district court of
said county, that court having affirmed the findings of said
board.
But two
errors on the part of the lower court are alleged, one going
to the sufficiency of the pleading, the other to the weight
and sufficiency of the evidence. We will examine the
objection to the pleading first. As the same objection
applies to both charges, it is unnecessary to copy both, and
we will therefore content ourselves with setting out the
first, which, omitting the matters of inducement, follows:
"Said
accused as such county clerk has been guilty of willful
neglect of duty.
"Specification
1. On the 31st day of January, 1900, there was and ever since
has been, and now is, pending in the district court of said
county, a certain action wherein one Henry Lehman is relator
and the said accused is respondent; said action being a quo
warranto proceedings instituted by the said Henry Lehman for
the purpose of ousting said accused from his said office as
county clerk of said county, and in said action the ballots
poll-books, and returns from the various election precincts
of said county, used and voted at the general election held
on the 7th day of November, 1899, were material and necessary
evidence for the said relator to maintain his said cause of
action and said accused at the time of entering upon the
duties of his said office, to-wit: on the 4th
day of January, 1900, received from his predecessor in office
and had in his custody as said county clerk the ballots and
poll-books used and voted at said general election, and as
such officer it was his duty to safely keep and preserve said
poll-books and ballots for a period of twelve months from the
time of said election. At the time said accused received said
ballots and poll-books on said 4th day of January, 1900, said
ballots and poll books were in packages securely bound and
sealed and delivered into the care and custody of said
accused on said 4th day of January, 1900, in the office of
the county clerk of said county and said accused well knowing
the premises, knowingly
willfully and unlawfully, for the purpose of destroying said
evidence permitted one John W. Cole, the attorney for said
accused in said quo warranto proceedings, to take from and
away from the office of the county clerk of said county, said
ballots and retained away from said office in the sole
custody of him the said John W. Cole for the space of two
days, during which time the said John W. Cole, with the
knowledge and consent of said accused, broke the seals of the
packages containing said ballots and opened and examined said
ballots and...
