70 Neb. 518 | Neb. | 1903
This proceeding is prosecuted from a judgment of the district court for Lancaster county, awarding to relators” a writ of mandamus commanding the respondent, Edwin R. Mockett, to transcribe and deliver to relators a transcript of the testimony introduced at a hearing had before the city council of the city of Lincoln, sitting as a board of equalization, which testimony was taken down by Mockett in shorthand. The issues as joined in the lower court, as well as the contentions now made, will appear from a
On behalf of respondent it is claimed that this judgment is erroneous, because it appears that Mockett was employed solely by counsel for the traction company to take doAvn the testimony; that in doing so he acted only on their behalf ; that as a result of this arrangement he owed no duty to relators to furnish a transcript; and that therefore mandamus will not lie.
It appears from the record that at about the time of the
The question we are called upon to determine is whether the writ should issue under the facts stated. The trial court found that the respondent, in assuming the duties as stenographer in taking the testimony before the board, acted in an official capacity, even though privately employed by the companies, and would therefore be bound to furnish a transcript of the proceedings upon application of any party interested therein upon the payment of the usual fee therefor; and that, having entered upon the duties as stenographer, he would be estopped to plead a private employment attended with duties to one of the parties inconsistent with his duty to all. We are very clearly of the opinion that the judgment of the trial court is correct. The proceeding was one held before, a public tribunal, the public at large being interested therein. In the very nature of the proceeding, it would seem to be
“A de facto officer can not remain undisturbed in office and claim that he is not a de jure officer. While in office he can be compelled to perform every official act in behalf of another which the duties of such office dictate. Mead v. Treasurer of Ingham County, 36 Mich. 416.”
It is recommended that the judgment of the district court be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.