96 Neb. 602 | Neb. | 1914
These plaintiffs, Frank O. Best and August C. Harte, were duly elected to the office of county commissioner of the third and fifth commission districts of Douglas county,
The sole question presented on this appeal is as to the length of the terms to which plaintiffs were elected. The plaintiffs insist that under the statute the term is four years, and the respondent insists that it is three.
The statutes governing this question are conflicting and inconsistent and cannot be literally enforced. Prior to 1905 the statute provided for five commissioners in Douglas county and fixed the term at three years. The act of 1905 (laws 1905, ch. 46), under which these plaintiffs were elected in 1911, contained the provision for five commissioners, but attempted to fix the term at four years. If this act is constitutional and has not been superseded and its terms are such as to be capable of being enforced, the plaintiffs are right in their contentions.
The' constitutional amendment of 1912 provided: “The general election of this state shall be held on the Tuesday succeeding the first Monday of November in the year 1914 and every two years thereafter. All state, district, county, precinct and township officers, by the constitution or laws
Was the act of 1905, under which these plaintiffs were elected, constitutional? Defendant’s counsel insists that
In State v. Plasters, supra, the question was whether the act there considered could have the effect to extend the terms of the incumbents of office of register of deeds in the several counties for another year beyond the term for which they were elected, and it was held that the legislature could not so extend the terms of office of the incumbents. This was the question mainly discussed in the opinion and the only question necessary to determine in that case. In the syllabus it is said that the legislature cannot “by an act wholly for that purpose extend the terms of such officers.” Similar language is used in the opinion, which would indicate that the court considered that the sole object of the act therein questioned was to extend the terms of certain registers of deeds. It is manifest that this was not the sole object of the act. The object of the act was to change the time of the election of the registers of deeds in the state from the odd-numbered years to the even-numbered years, and the provision fixing the length generally at four years and extending the terms of the incumbents was incidental to that purpose. There is no doubt that the legislature has the power to change the date of the election and fix the length of the term generally, and it was not necessary to declare the whole act unconstitutional, as appears to be stated in the second paragraph of the syllabus.
State v. Drexel, 76 Neb. 299, appears to have involved the same question, the attempt being “to extend for definite periods the terms of office of two of the county commissioners of Douglas county,” and that case was determined upon the authority of State v. Plasters, supra.
In State v. Galusha, 74 Neb. 188, it was held that the general act of the legislature of 1905 (laws 1905, ch. 65) was unconstitutional because it attempted to change the terms of constitutional officers that were fixed by the constitution itself. Chapter 46, laws 1905, was not involved
We therefore conclude that chapter 46, laws 1905, is not wholly invalid. It and subsequent acts of the legislature-fix the term of county commissioners of Douglas county at four years, and plaintiffs were elected under and pursuant thereto. It follows that the plaintiffs’ terms of office are four years and will not expire until January, 1916.
The decree of the district court is therefore reversed and the cause remanded, with instructions to enter a permanent injunction as prayed.
Reversed.