36 Neb. 352 | Neb. | 1893
This is a petition in error from the district court of Dawes county, the following being the material facts disclosed by the record: At the general election in 1885 the plaintiff in error was elected treasurer of said county. Before the commencement of his term of office the defendant in error, who was then treasurer of said county, commenced contest proceedings in the county court against him on the ground that he was ineligible to the said office by reason of not having resided in the state for six months previous to said election. On the 8th day of December, 1885, final judgment was entered by the county court in said proceeding, finding that the contestee therein, plaintiff in error, was ineligible, and declaring his said election null and void. From.the judgment aforesaid an appeal was taken to the district court, but said appeal was subsequently dismissed on the motion of the appellant therein, leaving the judgment of the county court in full force and effect. On the 9th day of January, 1886, the county board of said' county, at a meeting legally called, among other things, made the following record: “On motion the office of county
In considering the questions involved the fact should not be overlooked that the claim of the defendant in error to the emoluments of the office is based upon his alleged right to hold over on account of ineligibility of the plaintiff in error, his successor elect, while the claim of the latter is based upon his alleged appointment by the county board in January, 1886, and not his election in November, 1885.
It is provided by section 17, chapter 10, Compiled Statutes, that “when the incumbent of an office is reelected1 or reappointed he shall qualify by taking the oath and giving the bond as above directed, but when such officer has had public funds or property in his control his bond shall not be approved until he has produced and fully accounted for such funds and property, and when it is ascertained that the incumbent of an office holds over by reason of the non-election or non-appointment of a successor, or of the neglect or refusal of the successor to qualify, he shall qualify anew within ten days from, the time at which his successor, if elected, should have qualified.”
Construing the last clause of the above section with the provisions previously cited, we think the fight of the defendant in error on the failure of his successor-elect to qualify by reason of his ineligibility was to hold over, or become his own successor upon giving a new bond and taking the oath of office precisely as if he had been elected to succeed himself. In other wofds, the statute contemplates that he should enter upon a new and different term upon complying with the statutory conditions, and not otherwise. Another proposition, which we regard as well settled by authority, is that the plaintiff below must recover upon the strength of his own title to the office, and not on account of any defect in that of his adversary.- To state the same proposition differently, the fact -that plaintiff in error may have been a defacto officer merely will not avail the
2. It is probable that the action of the board on January 9, 1886, declaring the office vacant and attempting to appoint the plaintiff in error treasurer, was without authority of law, for, as we have seen, the defendant in error had a right to qualify as his own successor within ten days after
3. There is no doubt of the eligibility of the plaintiff in error at the time of his appointment in January, 1886. The fact that he was ineligible to election in November, 1885, by reason of not having been a resident of the state six months, would afford no legal objection to his appointment to the same office two months later, at which time there is no doubt of his eligibility.
4. The only remaining question is the effect of the judgment of this court in the quo warranto proceedings above referred to, 23 Neb., 385. It is earnestly contended by defendant in error that the judgment therein is conclusive of the question now at issue, and such apparently was the opinion of the district court. From an examination of the opinion in that case our conclusion is that the only question therein involved was whether the relator was entitled to the office in question by reason of his having been a resident of the state six months before the commencement of the term for which he was elected, to-wit, in January, 1886, or whether the election was void, for the reason that he had not resided in the state for six months at the time of his election. The only point stated in the syllabus in that case is the following: “The relator was elected to the office of county treasurer at the annual election held November 3, 1885. At that date he had been a resident of the state for five months only, but was otherwise eligible. At the commencement of the term his residence in the state had been continuous for seven months. Held, That being ineligible to such election at the date thereof, under a fair construction of sec. 1, art. VII, of the constitution, and sec. 64, ch. 26, Comp. Stats., such ineligibility was not removed, for the purpose of that election, by reason of six months’ continuous residence previous to the
Reversed and remanded.