State ex rel. Calling v. Smith , 101 Neb. 805 ( 1917 )

Sedgwick, J.

Dawson county is not under township organization, and has three commissioner districts, numbered respectively, 1, 2, and 8. The relator was elected commissioner for the third district in the fall of 1912, his term beginning in January, 1913, and. he concedes that he could not, by virtue of that election, hold longer than until January, 1917; but he contends that he is entitled to hold over because there was no valid election of a successor. At the election in 1916 the respondent was elected county commissioner for the third district. The contention is that this election is invalid and the respondent is not entitled to serve because a commissioner was also elected at the same election for the first commissioner district, and the statute (Rev. St. 1913, sec. 1955) provides: “In counties not under township organization having * * * three commissioners, two commissioners shall he elected in the year nineteen hundred and fourteen and every fourth year thereafter, and one commissioner shall he elected in the year nineteen hundred and sixteen' and every fourth year thereafter.” The relator construes this statute to be an absolute prohibition, and that, as the election of the commissioner of the first district was clearly valid, no more than one commissioner could be elected in that county at that election, and the alleged election of the respondent was therefore invalid. If we should give ' this statute that construction, the result would be embarassing to all counties not under township organization until the statute could be changed. If a commissioner should. die, or be removed from office soon after taking the office, no successor could be elected under such construction of the statute until the four years’ term was completed. This is clearly not the meaning of the statute. It provides affirmatively that two shall be elected in 1914 and every fourth year thereafter, and one shall be elected in 1916 and every fourth year thereafter, but does not forbid the election of more than one in the year 1916 if, because a vacancy has occurred or for any reason, there are two commissioners whose terms for which they were elected expire before or in the succeeding January. The argument that there was no vacancy because the relator was entitled to hold over until January, 1917, is irrelevant. Under the constitutional amendment elections are to be held on the even-numbered years. To comply with this provision it was necessary that the term of office of county commissioner should be for an even number of years. To accomplish this change the statute was enacted fixing the terms of two commissioners, in counties having three, for the four years beginning in January, 1915, and every fourth year thereafter. Their election was to be in 1914 and every fourth year thereafter. The terms of one commissioner are for the four years beginning in January, 1917 and every fourth year thereafter, the election being in 1916 and every fourth year thereafter. Under the statute the four years’ term for district No. 3 began in January, 1915, and will end in January, Í919. The relator has held two years of his successor’s term (Calling v. Gilland, 97 Neb. 788), and respondent’s term will expire in January, 1919. . His successor should be elected at the fall election in 1918. Therefore relator’s successor was properly elected at the election of 1916 for the remainder of the term expiring January, 1919, as in others cases where the term of a holding officer expires in or before January after the regular election. The term of office for districts No. 2 and No. 3 began in January, 1915, and will end in January, 1919. The respondent was elected for the remainder of this term in district No. 3. In 1918 commissioners will be elected for the regular four years’ term beginning in January, 1919, for districts No. 2 and No. 3.

The trial court correctly found for the respondent and dismissed the relator’s case, and the judgment of the district court is

Affirmed.