21 Neb. 218 | Neb. | 1887
This case arises upon an application for a mandamus by the relator to the respondent, commanding him to forthwith deliver up to him, the said relator, “ the office of the clerk of the district court for Saline county, with all things thereunto appertaining,” etc.
The respondent filed his answer to the said relation presenting the several’defenses and questions hereinafter referred to. It appears from the pleadings that at the general election of 1883 the county of Saline, having a population exceeding eight thousand, and therefore, under the provisions of the statute [Comp. Stat. Ch. 26, sec. 7] en
The points presented and urged by the respondent may be stated as follows:
1. That no election of clerk of the district court in and for said county could be legally held at the general election of 1886.
2. That if such vacancy could in any event have been
3. That at the said election a majority of the votes cast having the words “ for clerk of the district court to fill vacancy” thereon were cast for the respondent and not for the relator.
The first point, if well. taken, will certainly defeat the case of the relator. The respondent was appointed to fill the vacancy caused by the removal of Meeker. The term for which Meeker was elected will not expire until January, 1888, so that if the general provisions of law on the subject of vacancies do not apply to the office of clerk of the district court he would continue to hold until that time.
Section 7 of chapter 26 Compiled Statutes provides, inter alia, that “In each county having a population of eight thousand inhabitants or more, there shall be elected in the year 1879, and every four years thereafter, a clerk of the district court in and for such county.”
Section 101 of the same chapter provides that “Every civil office shall be vacant upon the happening of either of the following events at any time before the expiration of the term of such officer as follows: 1. The resignation of the incumbent; 2. His death; 3. His removal from office,” etc. Section 103 provides that “vacancies shall be filled in the following manner. * * * In county and px*ecinct offices by the coxxnty board,” etc. Section 105 provides that “Appointments under the provisions of this chapter shall be in writing and continue until the xxext election at which the vacancy caxx be filled and until a successor is elected and qualified,” etc.
The respondent contends that under the above provision's no successor in the office of clerk of the district court can be elected until the recurrence of four years from the date of Meeker’s election. This contention is based upon the
It is true that section 105 assumes the fact that there are elections at which certain vacancies cannot be filled and that these elections may occur after the happening of the event causing such vacancy. But we need not resort to a strained construction of any provision of the act in order to give a meaning to the language of this section.
Section 107 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,” etc. To apply this provision to the case at bar, had Meeker been removed less than thirty days before the general election of 1886, that election would have been one at which the vacancy caused by his removal could not have been filled, not because of any peculiarity in the term of the office, but because of the language of the section last above quoted. But as the office became vacant thirty days before said election it was an election at which said office could be filled. I thus reach
The second and third points are ably presented by counsel for the respondent, and were this a case of quo warranto, or one arising on a contest under the statute, they would be entitled to a careful examination and thorough consideration. But these questions do not arise in an action by mandamus. In that form of action the court cannot go behind the canvass evidenced by the certificate of election and inquire as to the notice of election or the form of the ballots cast thereat, but will only inquire as to whether the office is one which could be lawfully filled at said election, and whether the relator by virtue of the canvass thereoi has received a certificate of election thereat and has duly qualified for such office by taking the prescribed oath and giving the bond required by law! See State v. Jaynes, 19 Neb., 161, and authority there cited. These questions, as we have seen, must be decided in favor of the relator.
A writ of mandamus will issue as prayed.
Judgment accordingly.