61 Neb. 9 | Neb. | 1900
This action is in mandamus originally brought in the district court for Douglas county. In November, 1895, relator was duly elected police judge of the city of Omaha, by virtue of which election he was entitled, by the charter of said city, to serve in such capacity for two years, from the first Tuesday in January, 1890, until the first Tuesday in January, 189S. Under the charter-existing at that time, his salary was fixed at $2,500 per annum. In 1897 the legislature enacted a new charter for the city, wherein the term of that office was attemptéd to be fixed at three years, and the salary diminished to $1,200 per annum.. The city electiou under said new charter was held on the 20th day of April, 1897, and it was provided by such charter that the term of office of the person elected police judge at such election -should extend from the third Monday succeeding his election to the third Monday in March, 1900. Relator, at the election held on the said 20th of April, 1897, received a plurality of the votes cast for police judge. Afterwards, in the case of State v. Stuht, 52 Nebr., 209, it was decided that the legislature had no power to make the term of police judge longer than two years, the term fixed for that class of officers under the constitution, and held the portion of the charter in that respect void. As no election was held in November, 1897, relator held over under the provisions of section 20, article 6, of the constitution. His salary at the rate of $2,500 per annum was paid until the first Tuesday in January, 1898, since which time the city has refused to pay him at a higher
Section 16, article 3, of the state constitution declares: “Nor shall the compensation of any public officer be increased or diminished during his term of office.” This provision of the fundamental law has been construed to apply alone to officers created by that instrument, and as to such officers their compensation or salary, as the same existed when the official term began, could be neither increased nor diminished during such term. County of Douglas v. Timme, 32 Nebr., 272. A police magistrate or police judge of an incorporated city or town is a constitutional officer. Constitution, art. 6, sec. 1. Therefore the provisions of section 16, article '3, are applicable to the office of the police judge of the city of Omaha, and the salary of such officer can not lawfully be increased or diminished during the official term. The only question, therefore, necessary to determine, out of the multitude argued by the parties, is, whether or not the term served by the relator subsequent to the first Tuesday in January, 1898, is a part of his term of office, within the purview of that portion of section 16, article 3, of the constitution to which reference has already been had. If the time relator served subsequent to the first Tuesday in January, 1898, is a part of his term of office, if he has had but one term of office, and not two terms, then he is entitled to compensation at the rate of $2,500 per annum, regardless of whether that part of the charter of 1897, which attempted to fix the salary of that officer at a lower rate, is or is not valid, which latter question we do not decide.
This controversy arises by reason of the fact that two sections of the constitution, the one relating to executive officers and the other applicable to judicial officers,
In Baker City v. Murphy, ubi supra, Wolverton, J., in delivering the opinion of the court, observed, pa.ge 415: “One thing, however, is palpably manifest, that the right to hold over is by virtue of the previous appointment or election and qualification; it is a right accorded by statutes regulating the tenure of office. The holding does not come to an end on the day of the expiration of the statutory period, unless there comes a duly elected and qualified officer to cut it off, or unless his recognized successor is inducted into the office. In one sense, the holding- over is pro tempore, because the time of the holding is dependent upon the election or appointment of a successor; and in another it may be considered as the occupancy of a successor’s term, which is shortened by that length of time. But the holding for the technical term and the holding over is a recognized right arising from one appointment or one election. The tenure of office is indivisible. It cannot be considered as a broken term, or as a double term; it is one continuous holding;
A case much in point here is State v. Smith, 87 Mo., 158, 160. Black, J., in the course of his opinion, says: “It is true the law by which the relator was appointed fixed the term of office at four years, and contemplates that at the expiration of that time a new appointment will be made, but the same law also contemplates that the appointing power may not be promptly exercised, and to prevent a vacancy the incumbent is made to hold over until such appointment is made. This is a contingency contemplated by the law, and enters into every such appointment, and the time he holds over the designated period is as much a part of the term of his office a.s that which procedes the date at which the new appointment should be made. We have seen this is so for all purposes of holding the office, and in suits against the officer and his sureties on his official bond, and it must also be true with respect to the emoluments of the office.”
The office of police judge, however, falls within section 20, article 6, of the constitution, which is as follows: “All officers provided for in this article shall hold their offices until their successors shall be qualified and they shall respectively reside in the district, county or precinct for which they shall be elected or appointed. The terms of office of all such officers, when not otherwise prescribed in this article, shall be two years. All officers, when not otherwise provided.for in this article, shall perform such duties and receive such compensation as may be provided by law.” It is argued that, by reason of the difference in .the phraseology of these two provisions, it was intended by the framers of the constitution that the hold-over term of a judicial officer should not be considered a part of his regular or fixed term, but should be considered a new or distinct term;
It follo'ws that in refusing the writ of mandamus prayed for the district court erred, and its judgment is therefore
Reversed.