State ex rel. Newman v. Stauffer

11 Neb. 173 | Neb. | 1881

Maxwell, Ch. J.

This is a proceeding by quo warranto to oust the defendant from the office of clerk of the district court of Platte county, and to instate tbe relator therein. It is alleged in the petition in substance, that the relator, at the date of the general election in November, 1880, possessed and now has the necessary qualifications to entitle him to hold the office of clerk of said court; that at the election aforesaid he received for said office of clerk of the district court of said county ten hundred and thirty-six votes, and that one Jacob Cross received for said office six hundred and forty-one votes, the same being all the votes cast for said office at said election; that by the United States census taken in Platte county in June, 1880, said county contained nine thousand' four hundred and fifty-seven inhabitants. The defendant, county clerk of Platte county, demurred to the petition, upon the ground that the facts stated therein were not sufficient to entitle the relator to the relief prayed for. The question to be determined is the validity of the relator’s election to the office in question. This depends upon the construction to be given to that part of see. 7, of an act “ To provide a general election law, the procedure relative to contested elections, and the filling of vacancies in office,” approved March 1st, 1879, that relates to clerks of district courts, which reads as follows: “ In each county having a population of 8,000 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 said county, and in • each county having a population of less than eight thousand inhabitants, the county clerk shall be ex officio clerk of the district court, and perform all duties devolving upon that officer by law.” It will be seen that it was only in counties having at least eight thousand inhabitants in the year 1879 that an election for clerk of district court was to be held in that year. There was no authority to call an election for that purpose in counties having less than eight thousand inhabitants, nor was it intended that counties whose population reached eight thousand between the years 1879 and 1883 should be entitled upon attaining that number to elect a clerk of the district court in the intervening years. The election was to he held in 1879 and every four years thereafter. There is no provision for an election in intervening years, and as there is no allegation in the petition that Platte county contained 8,000 inhabitants at the time of the election in 1879, the petition fails to state a cause of action. The election of the relator in 1880, being held without authority of law, is null and void. The demurrer is therefore sustained and the action dismissed.

Action dismissed.