29 Neb. 198 | Neb. | 1890
This was an information in the nature of a quo warranto by the relator against the respondent, the object of which was to establish the relator’s supposed right to the office of councilman for the Fourth wai’d of the city of Lincoln, and to oust the respondent therefrom. The allegations of the petition are as follows :
“1. Comes now the relator in his own behalf and prosecutes this action, the attorney general of the state of Nebraska having refused to prosecute the same, and for cause of action the relator shows to the court that he is, and for more than four years last past has been a citizen and resident and taxpayer and legal voter of the Fourth ward of the city of Lincoln, Lancaster county, Nebraska.
“2. That the city of Lincoln is a municipal corporation duly organized under the laws of Nebraska as a city of the first class since about the 15th day of March, 1889, and for two years prior thereto was a city of the first class having less than sixty thousand inhabitants, and as such a city was duly organized under the laws of the state of Ne
“3. That at the annual election of said city of Lincoln held on the first Tuesday in April, 1888, one Robert B. Graham was duly elected councilman of said city of Lincoln, Nebraska, from the Fourth ward of said city for the period of two years and qualified and took his seat as such councilman; that as the time for the general election on the first Tuesday in April, 1889, in said city approached, said Graham announced himself a candidate for the nomination for mayor of said city at the hands of the republican party of said city, and at and prior to the holding of said convention of the republican party on March 30,1889, said Graham caused it to be given out that he would resign his office as councilman for the Fourth ward of said city prior to the annual election to be held on the first Tuesday in April, 1889, and requested that a candidate be nominated by the republican city convention to fill the vacancy that would be caused by his resignation, to be voted for at the forthcoming annual election in said city, tobe held on Tuesday, April 2, 1889; that in pursuance thereto your relator was regularly placed in nomination by the republican city convention as a candidate for councilman from the Fourth ward to fill the vacancy to be caused by the resignation of said Graham; that like candidates to fill said vacancy were nominated by the democratic and other political parties to be voted for at said forthcoming annual election; that on the first day of April, 1889, Robert B. Graham filed with the mayor and council in open council meeting, then being duly and regularly held, the following resignation, to-wit:
“ ‘ To the Honorable Mayor and Council, City: I hereby tender my redo-nation as councilman of the Fourth ward, to take effect at once.
R. B. Graham,
“‘ Councilman Fourth Ward’
“ 4. That notwithstanding the premises and the fact that said Robert B. Graham, on the 1st day of April, 1889, filed his resignation with the mayor and councilmen of said city, as stated in paragraph 3 hereof, the council, instead of accepting said resignation, over the objection of said Robert B. Graham, orally made in open council, referred the matter of the acceptance of said resignation to a committee on elections and the city attorney ; that thereafter, and at said meeting on the 1st day of April, 1889, said
“ 5. Your relator charges the fact to be that at the time of holding said pretended special election on the 22d day of April, 1889, whereat the said W. S. Hamilton claims to have been elected, no vacancy in the office of councilman from the Fourth ward of said city existed, said vacancy having theretofore been filled by the election of your relator at the regular annual election; that no authority
The prayer was for judgment establishing the relator’s right to the office, and ousting the respondent therefrom. The cause is submitted on a general demurrer to the petition.
It appears from the allegations of the petition that one day prior to the annual municipal election of 1889, one R. B. Graham, a councilman of the Fourth ward of the city of Lincoln, having one year yet to serve, filed with the mayor and council of said city, in open council meeting, his resignation in writing, to take effect at once, which was not accepted until April 8, 1889. At the annual city election held the day following the filing of said resignation the relator received a majority of all the votes cast in said ward for the office of councilman to fill said alleged vacancy. The mayor and council,* being of the opinion that no vacancy existed at the date of the holding of said annual election, for the reason that Graham’s resignation had not then been accepted, ordered a special -election to be held in said ward on the 22d day of April, 1889, to fill the vacancy caused by the resignation of said Graham. At this election the respondent received a majority of all the votes cast, and a certificate of election was issued. He thereupon qualified and entered upon the discharge of the duties of the office. The respondent’s claim to the office is founded upon the result of said special election, while the relator bases his right upon the result of said annual election.
It is contended by the relator that there is no authority
In making our decision we shall lay out of view one of the questions presented by the record, viz., whether or not there was a vacancy in the office of councilman at the date of the annual municipal election held on the 2d day of April, 1889. Conceding as true the position claimed by the relator that the office became vacant on the 1st day of April by Graham filing his resignation, then the question presented by the record now submitted, which requires examination and decision, is, Did the vacancy exist for such a length of time prior to the annual election that the relator’s election thereat would be legal? In other words, when a vacancy occurs in the office of councilman the day prior to the annual election, can it be filled by the voters at such election?
'We find but two provisions in the act of the legislature, under which the city of Lincoln was organized, relating to the filling of vacancies. The proviso clause to sec. 13 of chap. 14, Session Laws, 1889, page 156, reads as follows: “ Provided, That officers whose terms are unexpired shall hold their offices for the unexpired terms, and elections shall’be made as vacancies occur.” Subdivision XXY of sec. 67, of the same act, confers upon the mayor and city council power to enact ordinances “ To provide for removing officers of the city for misconduct, whose offices are created and made elective by this act, and to provide for filling such vacancies as may occur in any elective office by appointment by the mayor, by assent of the council, to hold until the next general election.”
Sec. 107 of the general election law provides that “Vacancies occurring in any state, judicial district, county, • precinct, township, or any public elective office thirty days prior to any general election shall be filled thereat. * * * Vacancies occurring in the office of any police magistrate in cities where the unexpired term does not exceed one year shall be filled by appointment, but vacancies occurring in such office less than thirty days prior to any city election, and where the unexpired term exceeds one year, shall be filled by special election,” etc. By this section vacancies in any public elective office (with certain exceptions, which do not include councilmen) existing thirty days preceding the general election shall be filled at such election. This section does not conflict with any provision of the act which governs the city of Lincoln, and clearly applies to the filling of a vacancy in the office of councilman. That it does so apply is evident from the fact that it makes an exception as to the office of police magistrate. Graham’s resignation having been filed but one day before the annual city election, the votes cast thereat for the relator were a nullity.
The petition, therefore, fails to show that he is entitled to the office of which he claims to be unlawfully de
Judgment accoedingly.