67 Neb. 535 | Neb. | 1903
The relator, Samuel I. Gordon, was elected police judge of the city of Omaha for a term of two years, beginning in January, 1896. After occupying the office for the full term he continued therein because of a failure by the city to choose a successor to him. In State v. Moores, 61 Nebr., 9, this court held that, while so continuing, he was a de-jure officer and entitled to the rate of compensation fixed by the statute at the, time of his election. These matters will not be reexamined in a subsequent action between the same parties. On the 2d day of January, 1902, nothing having occurred to affect the relator’s tenure of office, the city council enacted an ordinance appropriating $1,600 to pay him a residue of his salary accrued at that time. Pursuant to the ordinance, the city comptroller drew and signed a warrant upon the treasurer for the sum named, and presented it to the respondent Moores, mayor of the city, for the signature of the latter, which was refused. Gordon then obtained from the district court of the county an alternative writ of mandamus requiring the mayor to sign the warrant, or on the return day of the writ show cause for not having done so. The return recites that after the issuance and service of the writ the council had passed, and the respondent, as mayor, had approved, an ordinance repealing the appro
At one time a futile attempt, under an unconstitutional statute, was made by the city authorities to remove the relator from office, and for several months an intruder was thrust into his place. Gordon v. Moores, 61 Nebr.,
Upon consideration of the foregoing circumstances, the district court granted a peremptory Avrit of mandamus requiring the respondent to sign and deliver the warrant, treating the attempted cancelation thereof as void, and regarding even the physical destruction thereof as immaterial, since in that case it Avould be the duty of the
It is recommended that the judgment of the district court he affirmed.
For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court he
Affirmed.