91 Neb. 304 | Neb. | 1912
Kelator, having obtained a certificate of election as police magistrate for tbe city of Hastings at tbe general election in 1911, presented to tbe mayor and city council bis certificate, oath of office, and bond in tbe sum required by laAV. Tbe mayor and council refused to approve tbe bond, or to recognize relator's election to such office, upon tbe sole ground tliat at the time relator was elected there AAras no vacancy in such office and henee there Avas no such officer to be elected. Thereupon, relator brought proceedings in mandamus to compel tbe mayor and council to meet and approve, tbe bond. Tbe district court awarded relator a peremptory writ' as prayed, and respondents appeal.
Tbe city of Hastings belongs to that class having more than 5,000 and less than 25,000 inhabitants. It appears that at tbe city election in April, 1909, one Joseph Meyer was elected police magistrate for a period of tAvo years; that be qualified and discharged tbe duties of. the office for that period; that at tbe city election on April 4, 1911, Meyer was re-elected; that tbe vote was canvassed by tbe city council on April 10, and on April 11 be qualified as such officer. During all of those times, tbe city of Hastings acted under tbe provisions of article III, ch. 13, Comp. St. 1907, section 11 of which provided that tbe general city election in all cities governed by the act should be held on the first Tuesday in April annually. Section 12 provided that at tbe annual election held in April, 1907, there should be elected, Avith other officers, a police judge for two years, and biennially thereafter. On April 8, 1911, an act, Avith an emergency clause, was ap
In the constitution of 1875 we find the following provisions: Section 1, art. VI: “The judicial power of this state shall be vested in a supreme court, district courts, county courts, justices of the peace, police magistrates, and in such other courts inferior to the district courts as may be created by law for cities and incorporated towns.”
Section 13, art. XVI: “The general election of this state shall be held on the Tuesday succeeding the first Monday of November of each year, except the first general election which shall be on the second Tuesday in October, 1875. All state, district, county, precinct and township officers, by the constitution or laws made elective by the people, except school district officers, and municipal offi
Section 18, art. VI: “Justices of the peace and police magistrates shall be elected in and for such districts, and have and exercise such jurisdiction as may be provided by law.”
Section 20, art. VI: “All officers provided for in this article shall hold their offices until their successors shall be qualified, and they shall respectively reside in the district, county or precinct for which they shall be elected or appointed. The terms of office of all such officers, when not otherwise prescribed in this article, shall be two years. All officers, when not otherwise provided for in this article, shall perform such duties and receive such compensation as may be provided by law.”
In State v. Moores, 61 Neb. 9, we held: “The office of police judge or police magistrate of an incorporated city is called into existence by the constitution.” See, also, Moores v. State, 63 Neb. 345.
In 1897 the legislature passed an act incorporating metropolitan cities, and defining, prescribing and regulating their duties, powers, and government, and repealed the act of March 30, 1887, in relation thereto. Laws 3897, eh. 10. This act provided (sec. 13) that the first city election in all cities governed by the act “shall be held on the sixth Tuesday offer this act goes into effect, and the next general city election on the first Tuesday ir. March A. D. 1900, and all succeeding general city elections every three years thereafter. Such elections .shall he held at the same place as was the general election for state and county officials last preceding such city election.
The constitutionality of this act was assailed by an original action in this court in the nature of quo warranto. State v. Stuht, 52 Neb. 209. On page 214 it is said: “The first point discussed by counsel is in relation to the police judge, and the provisions of the new act fixing the time of the election of said officer and the duration of his term of office. The section of the act of 1897 to 'which our attention is particularly directed in this connection is as follows: (Section 13 of the act of 1897 set out in full.) It will be noticed that by the provisions of the section quoted the terms of office of the police judge, after the first one, are fixed each at three years.” The court then quotes section 1, art. VI, above set out. Section 20 is also set out. Continuing it is said (p. 216) : “Under the act or charter of 1887, which the act of 1897 by‘its terms repealed, there had been elected a police judge, whose term of office, fixed by the constitution, will expire in January, 1898; this term could not be abridged by statute, hence the act of 1897, to the extent it purports to affect such term, is invalid; also such portion of it as makes the term of office of a police judge three years instead of the constitutional term of two years is of no effect.” It will be seen that we there hold that the act of 1897, so far as it related to the office of police judge, was void upon two grounds: (1) To the extent it purported to affect the
By the act of April 8, 1911, the legislature appears, for the first time, to have caught up with the constitution and provided for the election of police magistrates in accordance therewith. Section 9, art. II, ch. lia, Comp. St. 1911, provides for their election on the Tuesday succeeding the first Monday of November, 1911, and on every alternate year thereafter, and that their terms of office shall begin on the first Thursday after the first Tuesday in January next succeeding their election.
A distinction is attempted to be drawn, in the briefs of counsel for relator, between the designations police judge and police magistrate. It is so apparent that those designations refer to one and the same office that this contention does not require discussion. That this court so considered them is shown by the quotation from State v. Moores, supra.
Under the terms of the constitution above set out, and under the authority of our former decisions above cited, we hold that the act of the legislature, in authorizing cities of the class to which'the city of Hastings belongs to elect, police magistrates in April and to provide that their term
The judgment of the district court is therefore
Affirmed.