State ex rel. McDermott v. Reilly

Sedgwick, J.

Kearney is a city of the second class having more than 5,000 and less than 25,000 inhabitants. At the election held on the 4th day of April, 1911, the respondent, Charles Reilly, was elected police judge of the city, pursuant to section 8510, ¿Ann. St. 1909. He duly qualified and entered upon the duties of the office, and has since been performing them. At the general election in the fall of 1911 one Willis L. Hand received a plurality of the votes cast for the office of police judge of the city. It is stipulated that he filed his official bond as such police magistrate, and that the bond was approved.' He demanded possession of the office from the respondent, which was refused. This action was begun in the district court for Buffalo county upon the relation of the county attorney of that county to test the respondent’s right to hold the office. The district court entered a judgment ousting the respondent from the office, and the respondent has appealed.

Several important questions are presented and discussed in the interesting briefs of counsel, but the two principal questions are as to the validity of the said section 8510, which depends upon the power of the legislature to fix the time of the election of police magistrates; and the validity and effect of the act of 1911 (laws 1911, ch. 23), in so far as it might result in removing the respondent from office before the expiration of his term fixed by the constitution. Section 13, art. XYI of the constitution, specifies what officers shall be elected at the general election, “except school district officers, and municipal officers in cities, villages and towns.” The relator argues that police magistrates of cities of this class are not municipal officers, and are therefore not within the exception. He contends that they are district officers and are within the general provisions of. that section of the constitution. The only basis of this contention, so far as we can see, is derived from that part of section 18, art. YI of the constitution, which provides: “Justices of the peace and police magistrates shall be elected in and for such districts, and have and exercise such jurisdiction as may he provided by law.” It is said that the legislature may create districts of any extent for police magistrates, and so extend their jurisdiction beyond the city limits; and, as.the legislature by the act of 1911 (laws 1911, ch. 23; Comp. St. 1911, ch. 14a, art. II, sec. 1) has extended such jurisdiction for three miles beyond the city limits, by so doing it has created a district and made the police magistrate a district officer, which requires that he must he elected a.t the general election. If this is the correct construction of the constitution and statutes, the police magistrate of Omaha has jurisdiction in South Omaha, if not also in Council Bluffs, and the police magistrate of South Omaha has like jurisdiction in Omaha. The magistrate of Kearney has jurisdiction of a part of the adjoining county, and, if the legislature should see fit, that jurisdiction might be extended so as to include Lincoln and Omaha. It does not seem to be necessary to determine this curious question, because even if such a district could be created by the legislature, and the jurisdiction of the police magistrate extended accordingly, he would still be a municipal officer within the meaning of the constitutional provision which we are considering. He would still, under present constitutional and legislative provisions, be chosen by the voters of the municipality. The only thing that the constitution fixes is to create the office of police judge and fix the length of the term. It does not prescribe when the term shall begin, nor when he shall be elected, nor in fact whether he shall be elected or appointed, nor how he shall be paid, nor what bond he'shall give, nor who shall approve the bond; all of these things are fixed by the legislature, and are by the legislature made municipal matters. If the legislature could create a judicial district without reference to the present judicial districts, providing a judge for the district, with jurisdiction not superior to the present district courts, and attempted to do so without giving all the voters of the district a voice in his election, such legislation would probably be invalid. We do not think the legislature has attempted any such thing.

The police magistrate of a city, being a municipal officer, is especially exempt from the general provision of the constitution as to the time of his election, and that matter is left to the legislature. The office of police magistrate is undoubtedly a constitutional office in that the constitution provides that there shall be such an office and fixes the length of the term; all other matters with reference to the office are left to the legislature, and as to them it is a' legislative office.

In State v. Mayor, 91 Neb. 304, this court took a different view, but upon motion for rehearing and further consideration another argument was ordered. Afterwards the litigation was settled between the parties thereto, and the court had no opportunity to correct its former opinion. That opinion is not to be considered as authority, therefore, upon any of the points therein determined.

County of Douglas v. Timme, 82 Neb. 272, is not authority in this case for three reasons: The principal and sufficient reason is that this question was not involved. The only question in that case was whether the legislature could increase the compensation of an officer during his term, and, there being no provision in the constitution to the contrary, the court held that the legislature could do so. This does not affect this case.

In State v. Stuht, 52 Neb. 209, the act criticised provided that the police magistrate elected in Omaha in 1897 should enter upon his term of office before the term of the then incumbent expired, thus abridging the term of the incumbent, and this it'was held the legislature could not do, since the constitution fixed the term of the incumbent at two years. It was because the legislature could not shorten the term of the incumbent that the time fixed for the new term to begin was in violation of the constitution, and not "because the constitution fixed definitely when each term shall begin. This case is not governed by State v. Stuht, supra, nor State v. Moores, 61 Neb. 9. Neither of those cases depends upon the question here involved. Neither of them depends upon the question whether the constitution fixes the time of the year in which the term of the police magistrate must begin.

The contention that section 8510, Ann. St. 1909, not being repealed by the act of 1911, is still in force, and other contentions in the brief are not necessary to this decision. The constitution provides that the term of police magistrate shall be two years. The respondent was duly elected to that office in the spring of 1911, and his term of office did not expire until the end of that time.

The judgment of the district court is reversed and the cause remanded.

Reversed.