John Barton, upon Ms own relation, filed an information in the nature of quo warranto addressed to the district court of Saline county to test the right of Millard F. Frantz to. hold and exercise the office of treasurer of said county. The statement of facts which constitutes the basis of the proceeding may be summarized as follows: The relator alleges a demand on the county attorney to institute the action and a refusal on his part to do so; that this action is brought on behalf of the state and of himself; that he is a citizen of the United States and' of the state of Nebraska, and on November 2, 1897, was a resident and elector of Saline county and possessed of all the qualifications required by law to hold the office of treasurer of said county; that he and respondent were the regular nominees and candidates of their respective parties for said office; that relator received 1,865 votes for said office and respondent 1,722 votes, and no more; that relator received a majority of all the votes cast at said election for the candidates for said office and was duly and legally elected such treasurer for the term of two years, commencing on the 6th day of January, 1898. It is further alleged that there was error, negligence, and fraud on the part of the judges and clerks of election in the various voting districts in said county in the count of votes and the returns thereof to the county clerk, and that the official canvass of said returns wrongfully and erroneously represented and showed that the respondent received 1,796 votes and the relator 1,752 votes; that some votes were wrongfully counted for respondent or wrongfully rejected and not counted at all, and that on the official canvass, on ae-
One of the grounds urged in justification of the ruling of the district court on the demurrer is that the court was without jurisdiction to hear and determine the cause for the reason that the statutory remedy by contest is exclusive. That question has been twice before this court for decision and may now be considered as definitely settled adversely to the contention of the respondent. In the case of Kane v. People, 4 Neb. 509, Lake, J., after bringing into view the constitutional and statutory provisions bearing upon the point, uses this language: “This shows the entire harmony existing between the constitution and our legislation on this subject, and leaves us in no doubt whatever as to the full and complete jurisdiction of the district court in this case.” In State v. Frazier, 28 Neb. 438, a case involving the office of county
Another argument pressed on our attention with much apparent confidence by the respondent is that the relator was in possession of the office in controversy, and having voluntarily abandoned the same and surrendered the possession thereof to the respondent, he thereby forfeited whatever rights he may have had. This contention is obviously without merit. Barton does not rely on a mere possessory right, but upon a title derived from, and by virtue of, an election. If he was in possession, it was his duty, at the commencement of the new term, to surrender that possession' to his adversary, who held the certificate of election and was, therefore, prima facie the lawfully chosen treasurer. (McCreary, Elections [3d ed.] sec. 267.) Moreover, it appears from the allegations of the information that Barton did not acquiesce in respondent’s claim of title, nor concede its validity, with knowledge of the facts which he now insists show his own election to the office.
A further consideration put forward in support of the judgment of the district court is that the relator has never qualified as treasurer of Saline county. Section 5 of chapter 10 of the Compiled Statutes 1897 requires all officers elected at any general election to file in the proper office their official bonds, with oath of office indorsed thereon, on or before the first Thursday after the first Tuesday in January next succeeding the election. Section 7 of the same act makes it the duty of the county board to approve the official bonds of all county officers except their own; and section 15 provides that “if any person elected or appointed to any office shall neglect
It was held in State v. Plambeck, 36 Neb. 401, and also in McMillin v. Richards, 45 Neb. 786, that where an official bond in due form, with sufficient sureties thereon, is tendered for approval by one having the prima facie title to an office, the proper officer must approve it, and that such duty would be enforced by mandamus. But we know of no case holding that there is any right given or duty imposed on any officer or board to approve an official bond offered by one who possesses no competent evidence whatever of his election or appointment. Had the relator presented his bond as treasurer to the county board of Saline county, that body would have no right to approve it and thereby recognize his title to the office. Mr. Frantz held the. certificate of election, and that was to them conclusive evidence of his right until the conflicting claims of the parties should be judicially determined in a proper proceeding. Consequently nothing would have been gained — no useful purpose would have been served — by the execution and presentation of an official bond. (People v. Miller, 16 Mich. 56.) The logic of respondent’s contention, therefore, is that the relator lost his right to the office by failing to have that done which, under the circumstances, was legally impossible of performance. We do not think the statute should receive so narrow an interpretation. We think that the failure of Barton to have his bond executed and approved within the statutory period was not the result of his neglect, and
Reversed.