| Neb. | May 31, 1889
Information was filed in this court by the attorney general in behalf of the state as well as that of the relator, Isaac N. Godard, by which the court is informed and given to understand, that on the 6th day of November, 1888, the relator was a citizen of the United States, and a resident of “J” township, in Seward county, and then had and now has all the qualifications required by law to hold the office of supervisor of “J” township aforesaid; that at the general election held on the day aforesaid for county and township officers, one William Ahlschwede was duly elected to the office of supervisor in Seward county for the township of “ J; ” that he thereupon duly qualified and entered upon the duties of his office and thereby became one of the members of the county board of Seward county and continued in said office until January 5, 1889, when he sent in to the county clerk of said county his resignation in writing; that said resignation was, on- the 28th day of January, 1889, received and accepted by said county clerk; that on the said 28th day of January, 1889, the said county clerk notified the county treasurer and county judge of said county, in writing, of the vacancy in the office of supervisor, and in the membership of the county board, and
The respondent, Nelson Taylor, filed his answer to the said information, in which he admitted that at the general election held on the sixth day of November, 1888, one William Ahlschwede was duly elected supervisor in and for “ J ” township in Seward county, and that he thereupon duly qualified for and entered upon the duties of said of
Respondent also alleges that the said William Ahlschwede did on the 18th day of January, 1889, resign his said office of supervisor of township “J” in said Seward county to the town clerk of said township, said resignation being on said day duly accepted by said clerk; that on the said 18th day of January, 1889, a petition in due form signed by a majority of the town board of said township, together with at least twelve freeholders of said township, was filed in the office of said town clerk, asking that said town clerk call a special meeting of the electors of said township, as provided by section 19 of chapter 18 of the Compiled Statutes, and stating in said petition that the object of said meeting was to fill the vacancy caused by the resignation of said William Ahlschwede as aforesaid; that on the 21st day of January, 1889, notices as required by law calling for a special town meeting to be held on the 31st day of January, 1889, at the place where the last annual election was held in said township, were posted in five of the most public places in said township, said notices containing a statement of the object of said meeting; that in pursuance to the call in said notices, on January 31, 1889, the electors of said township met at the place of holding the last annual election, and proceeded to choose a
Thereupon the relator filed a general demurrer to the answer of the respondent.
A stipulation signed by the respective counsel of the parties, in which each and every of the material facts contained in the relation and answer respectively are admitted to be true, was filed with the papers.
“1. To whom should the resignation of a township supervisor be presented: to the township clerk or to the county clerk?
“ 2. In what manner should the vacancy caused by such resignation be filled: by an election at a special town meeting held for that purpose, or by appointment by a board composed of the county clerk, county judge, and county treasurer?”
Section 102 of chapter 26, Compiled Statutes, provides that: “Besignations of civil officers may be made as follows : * * * 4. By all county and precinct officers to the county board, and by members of the county board to county clerk. 5. By all township officers to the township clerk, and by the township clerk to the town board.” This chapter was passed by the legislature of 1879. The act to provide for township organization, approved February 16, 1877, had been declared unconstitutional by the supreme court. (State, ex rel. Jones, v. Lancaster County, 6 Neb. 474" court="Neb." date_filed="1877-10-15" href="https://app.midpage.ai/document/state-ex-rel-jones-v-county-commissioners-6642380?utm_source=webapp" opinion_id="6642380">6 Neb. 474.) The subsequent act on that subject was not passed until February 24,1883, so that at the date of the act now under consideration there was but one kind or organization of county board known to the laws of this state. That was composed of county commissioners, who were elected by the voters of the entire county and were unquestionably county officers. This county board composed of county commissioners existing in every organized county in the state, constituted a sufficient subject for the application and operation of the language used by the legislature, when it spoke of “the county board” or of “members of the county board;” and I do not think the argument admissible that this language also applies to another kind of county board composed of members elected by the several townships of the county whose office was created by a law enacted four years later.
It is equally true that when the law-makers used the lan
An examination of the provisions of the act of February 24, 1883, supra, can leave no doubt that the supervisor therein provided for is a township officer in the fullest sense of that language. But I fail to find anything in said statute to justify the view that he is also a county officer; nor is he so designated or classified in any statute to which my attention has been directed. Section 61 of the act above cited, provides that “The board of supervisors shall meet at such times as may be provided by law, and each member thereof shall be allowed, when actually employed, the sum of two dollars per day, and mileage at the rate of five cents per mile for each mile necessarily traveled, and no more, as compensation for his services and expenses in attending the meetings of the board or any other business for the benefit of the county,” etc.
In the case of Bruner v. Madison County, 111 Ill. 11" court="Ill." date_filed="1884-09-27" href="https://app.midpage.ai/document/bruner-v-madison-county-6962462?utm_source=webapp" opinion_id="6962462">111 Ill. 11,
While the question under consideration is not entirely free from doubt, I am of the opinion that the resignation of Ahlschwede as supervisor of “ J” township was properly addressed to the clerk of said township.
2. Section 103 of the act provides that “Vacancies shall be filled in the following manner; * * * In township offices by the town board; but where the offices of the town board áre all vacant, the clerk shall appoint, and if there be no town clerk, the county clerk shall appoint.”
Having reached the conclusion that the supervisor, in respect to his election or appointment, is a township officer, and that his resignation should be addressed to the township clerk, by applying the language of the. 103d section,
But the above is not the only manner provided by law for filling vacancies in township offices. Section 19, art. 4, of the act approved February 24, 1883, now constituting chapter 18 of the Compiled Statutes, provides for the calling and holding of special town meetings under the circumstances and upon the conditions therein set out, and sec. 20 provides as follows: “ The electors at special town meetings, when properly convened, shall have power to fill vacancies in any of the town offices when the saffie shall not already have been filled by appointment,” etc. I agree with counsel for relator in the brief that if the vacancy in the case at bar had already been filled by appointment, at the time of the holding of the special town meeting at which respondent claims to have been elected, then such election would be invalid under the provisions last above quoted. But it need scarcely be said that a simulated appointment without lawful authority to make it, will not fill a vacancy. Indeed, I do not understand counsel to claim that the office of supervisor of “ J ” township was directly filled by appointment, but only as a result of the alleged filling of the vacancy in the county board. This theory is obviously faulty. The vacancy in the county board was not created directly, but resulted from the vacancy in the office of township supervisor made by the resignation of Ahlsehwede, and could only be filled as the result of filling that vacancy in the manner provided by law. In my view of the case, the vacancy in the office of township supervisor caused by the resignation of Ahlsehwede not having been filled by
The demurrer is therefore overruled and the writ denied.
Writ Denied.