Saling v. Bahensky

Sedgwick, J. At tbe primary election in 1914 tbe relator and Prank Bowers and William Johnson were nominated as candidates for tbe office of county commissioner for Howard county. Thereafter tbe relator began this action in tbe district" court against tbe respondent, who is county cierk of that county, to restrain him from putting tbe names of Bowers and Johnson upon tbe official ballot as candidates for that office. Tbe district court granted a preliminary restraining order and afterwards, upon final bearing, dissolved tbe restraining order and dismissed tbe proceedings, and tbe relator has appealed. Tbe relator was elected to tbe office of county commissioner at tbe general election in the fall of 1911, and contends that bis term was for four years and would not expire until January, 1916, and therefore there was no vacancy in that office to be filled at tbe election of 1914. 1. It is objected that injunction is not an appropriate remedy in such case. Contest of election provided by statute or, when that remedy is not applicable, tbe writ of quo warranto is tbe proper method of trying tbe right to public office. If tbe name of one who has been regularly nominated to an office is kept from tbe ballot by a restraining order or a temporary Injunction, be may be prevented from being a candidate at tbe election, although it is finally determined in tbe same case that be was entitled to a. place on tbe ballot. Thus be may, by a preliminary order, without any bearing, be deprived of a right that can never be restored to him. If injunction is the proper remedy, [791] the decision must finally depend entirely upon the relator’s right to the office. If the relator’s term has not expired, the election of a successor will not necessarily de-' prive him of the office. The question can still he tested’ by quo warranto proceedings. In Best v. Moorhead, 96 Neb. 602, the relators claimed that their terms as county commissioners had not expired and, as in this case, they sought to restrain the county clerk from placing the names-of rival candidates upon the ballot. The only difference-between that case and the case at bar, so far as this point is concerned, is that it related, to the primary ballot, and in the case at bar the election ballot is in question. -They began in time so that the case was disposed of in this court before the primaries were held. The question whether injunction was the proper remedy was not pressed and was not considered. In the case at bar the respondent says-in the brief that the contested names were placed on the ballot, and relator was also a candidate at the election,, but was defeated. The case is therefore purely academic so far as the form of the ballot and the names appearing thereon are concerned; but there are other cases- pending in this court- involving the question- of the length of terms of county commissioners in counties not under township organization and having three commissioners. In some of . them at least the question is being properly contested by quo warranto and, as we consider that we are already committed upon the question of the length of these terms in Best v. Moorhead, supra, we have concluded to state some-additional reasons for that decision. 2. It was suggested in Best v. Moorhead, supra, that “the statutes governing this question are conflicting and inconsistent and cannot be literally enforced.” The legislature of 1879 enacted two statutes, one entitled “An act to provide a general election law, the procedure relative to contested elections, and the filling of vacancies in office” (laws 1879, p. 240), and the other entitled “Concerning counties and county officers” (laws 1879, p. 353). The act “Concerning counties and county officers” was a comprehensive statute of 154 sections. It provided that the [792] board of county commissioners shall consist of three persons (section 53), and that, “at the first election held to choose the board of commissioners under this act in any county, the person having the highest number of votes shall continue in office for three years; the next highest two years, and the next highest one year; * * * and each commissioned elected thereafter, in pursuance of the foregoing section, shall hold his office for three years, and until his successor is elected and qualified.” Section 55. This section was intended to apply to all counties from the time that the act took effect, and not merely new counties organized after that, as suggested in the.brief, since section 11 of the act specifically provides for the first election in new counties. This act was afterwards very frequently .amended, for the purpose of providing for five commissioners instead of three in Douglas county and in such other ■counties as might elect to have that number, and for various other purposes, from the time of its first enactment until the legislature of 1905. In 1905 the legislature attempted to adopt the policy of biennial elections. It enacted a statute specifically for that purpose. Laws 1905, ch. 65. That statute was held to be unconstitutional, as the constitution expressly fixed the terms of many officers to begin in odd-numbered years, and that act undertook to •change those same terms to begin on even-numbered years, .and for other reasons. The legislature of 1905 (laws 1905, ch. 46) also enacted a statute,' entitled “An act- to amend sections 54 and 55, of art. I, ch. 18 of the Compiled Statutes,” etc. These were sections 54 and 55 of the original act of 1879, “Concerning counties and county officers,” as .amended. Section 54 had been amended from time to time and finally in 1891 (laws 1891, ch. 21). Section 54 ■of the original act provided ■ for dividing counties into three districts, and that one commissioner should be elected from each district, and section 55 fixed the terms of office of the commissioners. This section was as follows: “At-the first election held to choose the board of commissioners under this act in any county, the person having the highest number of votes shall continue in office for three [793] years; the next highest two years, and the next highest one year; but if any two or more persons have the same number of .votes, their term of office shall be determined by the board of canvassers, and each commissioner elected at the first general election, as herein provided, shall hold his office for three, two or one years, as the case may be,, and until his successor is elected and qualified, and each commissioner elected thereafter, in pursuance of the foregoing section, shall hold his office for three years, and until his successor is elected and qualified.” It was intended to apply to all counties of the state, and not merely counties thereafter organized. Section 11 of the art provided for the election of commissioners in new counties. Chapter 16, laws 1905, amended said section 55. The only change made was to make the term of office four years instead of three. It amended a section of the act “Concerning counties and county officers,” and the manifest intention was to make the term four years in all counties of the state. The general election law provided that the provisions of an act creating an office should control as to the election of such officers and their terms of office. It was held in Best v. Moorhead, supra, that this amendment of the act concerning counties and county officers had the effect to fix the terms of county commissioners in all counties of the state. The general election law of 1879 (laws 1879, p. 210) named the officers to be elected, state, district, county, township and precinct, and generally stated incidentally the term of office. Section 7, after providing for the election of various officers of counties not under township organization, contained these words: “And one county commissioner shall be elected annually who shall serve three-years.” This was all that was said in the act in regard to county commissioners and their terms of office. The act concerning counties and county offices created the office of county commissioner, and provided at large the duties of that office and the time and manner of the election. If there is a conflict between the general election law and the law concerning counties and county officers as to the [794] election of county commissioners the latter act would of course control, under the provision of the general election law above quoted, even if it would not control without .such provision. A statute was enacted in 1907 (laws 1907, eh. 51) which purports to amend section 7 of the general election law and still retains the words: “One county commissioner shall be elected annually who shall serve .three years” — which is the only reference to county commissioners, and it also contains the provision that county .officers “created by statute or that may be hereinafter •created shall be elected at such general election as may be provided in the law creating the office or offices.” It repeals the former section 7 of the general election law, but does not repeal nor mention the act in relation to Bounties and county officers. The act was enacted after the general election law of 1905 was declared unconstitutional, and was intended to take the place of that statute, and did not intend nor purport to repeal or amend the act relating to counties and county officers, but expressly provided that that act should control as to the election of such officers. The statute of 1905, as we have .already seen, malíes the term of county commissioners four years, and in Best v. Moorhead, supra, it was held to be ■constitutional and valid for that purpose. The relator’s term of office was four years, beginning in January, 1912. Without determining whether the process of injunction may be used under any circumstances to control the action of the county clerk in making up the official ballot, we cannot find that there was any abuse •of discretion in dismissing the action under the peculiar circumstances in this case. ■ Affirmed. Letton, Fawcett and Hamer, JJ., not sitting.