52 Neb. 634 | Neb. | 1897
This was an action of quo warranto instituted in this court by A. O. Foster, H. E. Palmer, and Peter W. Birkhauser to determine the rights of relators and respondents, respectively, to the offices of fire and police com
It is important to remember that this action was not instituted by the attorney general, but was brought by private persons asserting the right to the offices in question. Had the attorney general been the relator, it would have devolved upon the respondents to show that they were rightly inducted into office; in other words, that they were appointed and are acting under a constitutional law. (State v. Tillma, 32 Neb., 789.) When the information is filed by a private person the same rule does not obtain. He is required to show that his title to the office is better than the incumbent’s,- and must recover, if at all, upon the strength of his own title and not upon the weakness of the claim of his adversary. This doctrine is not new, but has been more than once asserted by this court. (State v. Stein, 13 Neb., 529; State v. Hamilton, 29 Neb., 198; State v. Boyd, 34 Neb., 435.)
The principal argument of counsel for relator is that said sections 166 and 167 of the act of 1897 are unconstitutional and void, because they are inimical to the inherent right of local self-government. Precisely the same objection could be successfully made against the statute under which Mr. Birkhauser was appointed. In violation of the principle of local self-government, it empowered the governor, commissioner of public lands and buildings, and attorney general, to appoint the fire and police commissioners for cities of the metropolitan class, while, under the existing law, that duty was devolved
Another contention of respondents, which is not devoid of merit, is that the writ must be denied for the reason the relator voluntarily abandoned the office in question, and acknowledged the right of the incumbents to discharge the' duties pertaining to the board of fire and police commissioners of the city of Omaha. This the relator denies, and on his direct examination as a witness in his own behalf he testifies that it never was his intention to vacate the office nor relinquish his right and title thereto. Whatever may have been his secret intentions upon the subject,, the reading of his cross-examination in connection with the other testimony taken before the referee leaves no trace of a doubt that all the relators deliberately abandoned their offices upon the appointment and qualification of the respondents. The testimony establishes beyond dispute that regular meetings of the old board of fire and police commissioners were held on each Monday evening; and that, since respondents qualified, no meeting of the old board for the discharge of business has been held, and no official duty has been by it transacted. There is likewise testimony in the record conducing to show, although contradicted to some extent, that at the last meeting of the relators as a board, held on March 29, 1897, the members thereof agreed among themselves to make no further claim to the office .of fire and police commissioners and that they would severally and collectively turn over to the respondents, as their successors in office, peaceably and courteously, the books and records belonging to said board; that relator Foster was then and there directed by Palmer and Birkhauser to meet with the members of the incoming board and extend to them their good wishes and to proffer any
One who voluntarily abandons a public office will not be permitted thereafter, at will, to assert title thereto. The principle was fully recognized and applied in State v. Boyd, 34 Neb., 435. The doctrine that the continual failure and refusal of a public officer to perform the duties thereof will operate as an abandonment is well established by the authorities. (Mechem, Public Officers, 435; People v. Hartwell, 67 Cal., 11; State v. Allen, 21 Ind., 516; People v. Kingston T. R. Co., 23 Wend. [N. Y.], 193, 19 Am. & Eng. Ency. Law, 562*; Yonkey v. State, 27 Ind., 236; Page v. Hardin, 8 B. Mon. [Ky.], 666; People v. Hanifan, 96 Ill., 420; 6 Brad. [Ill. App.], 158.) Turnipseed v. Hudson, 50 Miss., 429, sustains the contention of relator that there has been no abandonment of the office by him. That decision was rendered by a divided court, and the opinion of the majority fails to carry conviction to our mind. The writ is denied.
Writ denied.