45 Neb. 786 | Neb. | 1895
This was an action by plaintiff in error against defendant in error to recover the fees and emoluments of the office of county treasurer of Dawes county during defendant’s incumbency thereof as treasurer de facto. From a judgment in favor of the plaintiff the defendant prosecuted a petition in error to this court, where a judgment of reversal was entered and the cause remanded to the district court for further proceedings therein on March 1, 1893. (See Richards v. McMillin, 36 Neb., 352.) After said reversal, an amended petition was filed in the district court, to-which the defendant interposed a general demurrer, which.
The plaintiff for cause of action alleges, in substance :
1. That on the 27th day of June, 1885, at the first election held in Dawes county, he was elected county treasurer of said county and on the 11th day of .the following month he filed his bond as required by law, which was duly approved by the county board, and that he took the oath of •office and entered upon the discharge of the duties of county treasurer.
2. That at the general election held in said county on November 3, 1885, the defendant De Forest Richards, being a candidate for the office of county treasurer, received a majority of the votes cast for said office, and received his certificate of election from the county clerk.
3. That on November 20, 1885, plaintiff instituted proceedings in the county court to contest the election of defendant, on the ground of ineligibility at the time of said election, and that said election was null and void, which judgment, on being appealed to the district court, was affirmed at the February, 1888, term thereof, and still remains in full force and effect.
4. That under the judgment of the county court plaintiff continued to hold, occupy, and discharge the duties of county treasurer of said county, “ and that on, to-wit, the 17th day of January, 1886, said date being within ten days from the time when said Richards would have been obliged to qualify as such county treasurer under the statutes, if eligible to said office, plaintiff made out and tendered to said board of county commissioners of Dawes county a new bond as such county treasurer, with good and sufficient security thereto, for their approval, and said plaintiff took and subscribed to the oath of office thereon as provided by law, and in all respects complied fully with all the requirements as provided by law, and was eligible
5. The plaintiff legally held over his said office and was entitled to, and it was his duty to exercise the functions of said office and to receive the fees and emoluments thereof until his successor should be elected and qualified, and that the term which the plaintiff held over did not expire until the first Thursday after the first Tuesday in January, 1888.
6. That on January 9, 1886, the board of county commissioners declared the office of county treasurer vacant, and appointed the defendant to fill the same.
7. That defendant obtained possession of the tax lists of the county, exercised the powers and duties of the office, and received the fees and emoluments thereof and kept the plaintiff therefrom. That plaintiff has repeatedly demanded from the defendant said office and the books, papers, and moneys belonging thereto, with which demand the defendant refused to comply.
8. The fees and emoluments of said office received and kept by the defendant from the time he entered upon the duties thereof until the end of said term amounted to $1,757.20.
9. That plaintiff was ready, willing, and at all times desirous to perform the duties pertaining to said office during the period he was deprived thereof by defendant.
10. The plaintiff made demand of the defendant for said sum of $1,757.20, but payment was refused.
Upon the former hearing it was held, substantially, that in an action against a defacto officer to recover the emoluments of a public office received by the defendant during his incumbency thereof the plaintiff will not be entitled to
State v. Lewis, 10 O. St., 128, was a proceeding by quo warrcmto to determine the right of the relator and respondent to the office of sheriff of Marion county. The relator was elected to succeed the respondent and tendered to the proper officers a good and sufficient bond, which they declined to accept and approve because it was claimed the same was not presented in time. The court, in the opinion, observe: “He [relator] was not authorized to enter upon the duties of his said office and oust the defendant, until his official bond had been accepted and approved by the county commissioners. If the bond was, in fact, rejected by them, though for an insufficient or improper reason, the sureties in that bond could hardly be held responsible for his subsequent official delinquencies. If the facts stated in the information are true, he should have applied for mandamus to compel the county commissioners to accept and approve his bond instead of proceeding by quo warranto against the former incumbent, who rightfully retains the office until his successor has been, in all respects, qualified to assume its duties. Eor these reasons the present application must be refused.”
In State v. Lynn, 31 Neb., 770, which was quo warranto to oust the respondent from the office of justice of the peace
If the approval of a bond by the proper authority is indispensable to the complete qualification of an officer so as to entitle him to maintain an action to recover the office by quo warranto, it would seem clear then, by a parity of reasoning, that such actual approval is also necessary to authorize such officer to recover the compensation attaching to the office, since, as ruled in the former opinion, the right to the emoluments of an office depends upon the strict legal title to the office. The plaintiff, upon the failure of the county board to accept and approve his bond, could have applied for a writ of mandamus to compel it to do so. But it is said in the brief that the board having already approved the bond of Richards, an application for a writ of mandamus would have been unavailing, inasmuch as the writ may not issue to control the discretion of an officer, and, further, such a proceeding'would have involved the question of the title of the office, and this cannot be tried in such an action. There is no allegation in the petition that Richards ever gave a bond, much less that the board
Affirmed.