89 Neb. 652 | Neb. | 1911
Relator filed his information in the nature o£ quo warranto in this court in the exercise of its original jurisdiction against defendant William J. Furse, in which, in addition to that of relator’s eligibility, it is alleged, in substance, that on and prior to the 10th day of October, 1910, one William Cowgill was and had been duly elected and acting as one of the state railway commissioners of this state; that on the said 16th day of October he died, and his office then became vacant; that thereupon relator was duly nominated by petition as a candidate for said office to fill said vacancy; that the fact of the death of said William Cowgill and of the vacancy in the office caused thereby and of affiant’s nomination to fill said vacancy were published in the various state and county papers throughout the state, and thus became matters of general knowledge to the people of the state on and before the ensuing election; that the secretary of state thereupon duly certified the name of relator as nominee for said office to the county clerk of each county of the state, and relator’s name was duly printed upon the sample and official ballots used and cast at the general election (held on the 8th day of November, 1910) in nearly all of said counties; that at said general election there Avere cast 79,088 votes for the office of state railway commissioner to fill said vacancy, all of which said votes Avere received'by relator; * that said votes were duly certified to the secretary of state,
To this information defendant has filed a general demurrer, the grounds therefor being that the facts stated in the information are not sufficient to constitute a cause of action, are insufficient to entitle relator to the relief prayed for, and are not sufficient to sustain a judgment of ouster. The case has been briefed and argued upon the demurrer and the questions of law presented.
The decision depends upon whether the clause or provision in section 1, art. VIII, ch. 72, Comp. St. 1909, providing that “the governor shall fill all vacancies in the office of railway commissioner by appointment, and the persons so appointed shall fill said office until the next general election after his said appointment,” is to be held as complete within itself and exclusive of all other laws upon the subject of filling vacancies in said office by the governor, or whether, if valid, it is to be considered in
It is argued by relator that the provision of section 1, art. VIII, ch. 72, Comp. St. 1909, which we have herein above quoted, is complete within itself, containing all that is necessary for the guidance of the governor in filling the vacancy, and was not intended by .the legislature as having any connection with, or relation to, the then existing law. Upon the other hand, this theory is combated by defendant for the reason that, if this should be held to be true, it cannot be applied, because the provision for filling vacancies is not within the title to the act, and is Unconstitutional and void. This contention is not without reason in its support; but, as we view the questions involved in this case, we do not deem it necessary to pass upon that point, and it will not be decided. Should we hold that provision void as. unconstitutional, we would have only what is contained in chapter 26, supra, as conferring authority upon the governor to make the appointment. Should we hold the provision valid, and that the two are in pari materia and tó be construed together, the result would be
What about these details? If we cannot take them from the law as it existed prior to the enactment of the railway commission law, we are left without a guide. We agree with counsel for relator that the office of railway commissioner is, under the constitution, to be classed as an executive office. Of this we think there can be no doubt, as it can neither be said to be legislative, nor judicial, and the three classes are the only ones given by that instrument. In re Railroad Commissioners, 15 Neb. 679. The fact that railway commissioners are not provided for in the constitution until the amendment thereof by the adoption of the joint resolution of 1905 can make no difference, since the language of the constitution in the classification of the departments of the state government is broad enough to include all offices thereafter created, whether by the amendment of that instrument or by legislative enactment. The office under consideration being an executive office, and the clause contained in the railway commission law not providing for the details of appointments to fill vacancies, we must hold that, if valid, it must be treated as providing only in a general way that the duty of appointing a temporary successor to á deceased member of that commission devolves upon the governor, and con
• In support of the contention by relator that the quoted clause in the railway commission law is exclusive upon the subject of filling vacancies in the office of such commission, we are cited to State v. Walker, 30 Neb. 501, and State v. Rankin, 33 Neb. 266. Judging by the syllabus of the former case, there was but one question before the court for decision, which was whether the appointment of a county attorney to fill a vacancy in that office was sufficiently made by entering the fact upon the records of the proceedings of the board, and failing “to make, sign and file with the county clerk a written appointment, separate and distinct from the record of their proceedings.” It was held that, as the county clerk was the custodian of the records of the county board and such records were kept in his office, there was a sufficient compliance with the law. The discussion of the manner of filling vacancies as provided by section 105 of the election law seems to be aside from the true question involved, and we are unable to see how it can be said to control this case.
While we do not think that, were the questions decided in the latter case (State v. Rankin, 33 Neb. 266) before us in the first instance, we would have agreed to all that is said in the opinion, yet it seems to us that this case is to be distinguished from that one. However, it is our opinion that the general law providing for the filling of vacancies was intended as a regulation for all vacancies, and the fact that an office is created after the enactment of the law would be as much within its provisions as though it existed at the time the general law was passed, unless full provision were contained in the law creating the office.
However, it is our opinion that a distinction can be drawn between that case and the present one by reason
It follows that the demurrer to the petition must be, and is, sustained.
Demurrer sustained.