18 Neb. 422 | Neb. | 1885
This is an application to this court, in the exercise of its original jurisdiction, for a writ of mandamus directed to the county board of supervisors of Saline county requiring it-to proceed to the examination of certain charges preferred against Charles W. Meeker, the clerk of the district court, by the relator herein.
From the record before us it appears that on the fourth day of August, 1885, the relator filed in the office of the county clerk of Saline county a complaint against Meeker charging him with official misdemeanors as such officer, and that the county clerk issued a summons to him, as is provided by article two of chapter eighteen of the Compiled Statutes of 1885. The charges and specifications are quite lengthy, and will not be noticed in detail. On the 25th day of August the matter came up for hearing before the supervisors, when the respondent filed a plea to the jurisdiction of the board. In this it was contended that the statute not having conferred such powers upon the board of supervisors, they were without authority to act. The session continued from day to day, until the 29th. During this time a number of other pleas, motions, etc., were filed by the respondent, which were, briefly stated, as follows:
Denying the right of the board to proceed without all the members being present.
That the costs be taxed to complainant.
An objection to the board delegating any of its powers to the chairman, such as determining the order of argument upon interlocutory questions, etc.
A general demurrer to the complaint.
An objection to the jurisdiction of the board, for the reason that a member was acting without authority, he not being a legal member of the board.
Denying the jurisdiction of the board, for the reason that two townships of the county were without representation thereon.
A demand or motion for permission to examine the members of the board as to their qualifications to sit in the case.
A motion for a change of venue.
These questions were disposed of in their order, and the case retained for hearing, until the board, apparently tired of the protracted proceedings, and perhaps uncertain as to their powers and duties, passed the following preamble and resolution :
“ Whereas, Three days have already been used by this board in the consideration of the case of The State, ex rel. Castor, v. Meeker ; and
“ Whereas, All of said time has been given to the consideration of motions made by defendant’s counsel; and
“Whereas, Counsel for defendant have notified this board that they intend to file separate objections to each and every one of the thirty specifications in the complaint, and subpoena 1920 witnesses; and
“ Whereas, Owing to the dilatory motions made by defendant, and proposed to be made, and the length of time consumed by defendant in discussing said motions, it will be almost impossible to ever reach a final conclusion of said cause before this board; and
“Whereas, Counsel for defendant not only refuse to obey the orders of this board, but often use insulting, language toward the members thereof, and declare that said board has no power to punish for contempt, or to compel them to obey the orders of this board, nor authority to issue subpoenas, or compel the enforcement of its orders; and
“Whereas, This board has no power to enforce its orders, and cannot compel the defendant to desist from filing motions, and to proceed with the trial of this cause; aud
“ Whereas, It is held and ruled, on motion of defendant,*426 that all the twenty members of this board must be present in order to legally try this cause; and
“ Whereas, It will scarcely be possible for all the members of this board to be present during the great length of time which will be required to complete the hearing of said cause; and
“Whereas, Counsel for defendant strenuously urge that the board may and should,-under the law, direct the county attorney of this county to take this cause to the district court for trial; therefore, be it
“ Resolved, By this board, that the county attorney of this county be and is hereby instructed to carry this case to the district court of this county for trial, and that this board refuses to proceed any further with the hearing of this cause, and the costs thus far made be and are hereby taxed to the complainant.”
Another “ motion ” was filed by the respondent, but no further action was taken by the board. It is now sought to compel action. If this court has jurisdiction to issue the writ at all it can only be to require respondent to act, and exercise its judgment. It cannot control legal discretion. Sec. 645, Civil Code.
The first question presented by the respondents is as to the sufficiency of the charges and specifications. As the present jurisdiction of this court in this case is original and not «appellate, we can have no occasion to pass upon this question. It appears from the record that the county board has held them to be sufficient. That must be final, so far as the action of the board is concerned, until reversed either by itself or by an appellate tribunal. It may be, and is perhaps, true that we may look into the record sufficiently to ascertain whether or not the paper styled “ charges and specifications ” contains enough to raise it to the dignity of what it purports to be, and for that purpose we have examined it and found it sufficient.
The next, and perhaps most important, question pre
In the State, ex rel, v. Oleson, 15 Neb., 247, it was held that, “The trial and ousting from office of a sheriff for corruption, under paragraph 5 of Sec. 1, Art. 2, Chapter 18, ’Compiled Statutes, by the board of county commissioners, is not the exercise of judicial power nor of the power of impeachment, but of a quasi political and administrative ’.power not denied to such bodies by the constitution.” This being true, and the board of supervisors being a substitution for the board of commissioners in the general exercise •of this political power, it would seem to be clear that such board would succeed to the powers of the commissioners -of that nature, except where otherwise provided by statute, or to be clearly inferred. As we have seen, at the time of the passage of the law for the removal of county officers the board of commissioners was the only administrative and political agency of the counties of the territory and state, and with that view the law was passed, not so much to confer the jurisdiction upon the commissioners, but upon the body exercising and enforcing this administrative and political power.
We therefore conclude that the county board of supervisors has all the jurisdiction and power under the law for the removal of county officers in counties under township
In view of the very remarkable preamble and resolutions adopted by the board, it is deemed proper to notice-some of the recitals and declarations therein in order to-furnish a guide for their future action upon the questions therein referred to.
It is said “counsel for defendant have notified this board that they intend to file separate objections to each and every one of the thirty specifications in the complaint, and subpoena 1920 witnesses.”
The defendant, by his counsel, has the right to attack “each and every” of the charges and specifications contained in the complaint. But in this they must be governed by the usual rules of practice obtained in courts of justice, and all these objections would have to be in one paper filed at once and disposed of at once. If any of the charges or specifications should be found insufficient in law they can be so held, and the objection as to them sustained. As to the array of witnesses, it is clearly within the power of the board to tax the costs made by calling unnecessary witnesses to the party calling them; and this power should be freely exercised if necessary.
Another recital is to the effect that as defendant had filed and proposed filing dilatory motions, and the length of time occupied in discussing them, it would be impossible for the board to reach a final conclusion, etc. There
It is recited further, that the defendant refuses to obey the orders of the board, uses insulting language toward the members, and that the board has no authority to enforce its orders, etc. Upon this part of the case the relator has •cited no statute conferring this power upon the board. But if such power does not exist it does not deprive the board of the power to hear the case and decide upon the merits of the testimony adduced, and it can hardly be believed that a respondent in such a proceeding would be willing to mistreat or shory disrespect for the tribunal whose duty it was to pass upon questions so directly affecting his interests. The suggestion that a respectable ■attorney would do so is not to be for a moment entertained.
The ruling of the board that “all the twenty members ■ ■of the board must be present in order to legally try the cause” is most clearly wrong. “Two-thirds of all the supervisors elected in the county shall constitute a quorum,” etc. See. 68, Ch. 18, Compiled Statutes 1885. But of a special meeting all must be notified.
The board had no authority to direct the county attorney to take the case to the district court or to any other ■court. It is their duty to hear it and decide it so long as the relator insists upon the same being done.
It is the duty of the board to act in the case. It having refused to do so the writ must be awarded as prayed.
Judgment accordingly.