Omaha daily bee., 1896-10-25
WHEELER WILL HOLD OVER
Judge KeysOr Rules Against the Petition Of
Henry 0sthoff.
CITES A SUPREME COURT DECISION
Court Holds that Council Has the
Right 10 FIJI the Vacancy
Caused by the Death
of Dubois.

Judge Keysor yesterday refused the APP
plicaton OF Henry Osthon for writ OF
mandamus compelling the city clerk to put
his name on the official ballot as the demo-
cratic candidate for the office OF councilman
at-large to nl the vacancy caused by the
death Of Samuel Dubois. This decision will
leave Daniel II. Wheeler in undisturbed
possession OF the office to which he was
appointed by the city council until the first
Tuesday in January, 1897, and the names
OF Henry Osthoff, the democratic nominee,
Lee Yates, republican nominee, and Daniel
O'Connell poprlst nominee, VIII not APP
pear on the official ballot at this election
In passing upon the case Judge Keysor
quoted the section of the charter providing
for the election OF councilmen-at-large and
all city officers, except ward councilmen, in
the odd-numbered years, to serve for two
years He also quoted the section giving
the mayor and council power ito provide
for filling such vacancies as may occur In
the office OF councilman or other elective
Offices OF the city" The Fudge stated that
where the mayor and council were given
the power to I'LL a vacancy he doubted the
power of the court to compel them to do so
In any particular manner. The mayor and
council had passed ordinance providing
how vacancies should be filled and had acted
within their powers.
Judge Keysor also said that he did not
believe the election to be held this year
was general city election" within the
meaning OF the law as applied to cities Of
the metropolitan class. He quoted the char
ter as showing that the general city cleo
ton In this city occurred In the odd num-
bered years. He also referred at length to
the decision OF the supreme court in the
case brought by William Sexauer to GUST
Truman Buck from the Office OF city treas
urer in 1882. The Judge said the case re-
ferred to was an exact parallel to the case
at bar. Samuel G. Mallette was elected
city treasurer In April. 1881, for two years,
and died December 81 OF the same year.
Truman Buck was appointed to the Office by
the mayor and city council. and at the next
election, held In April, 1882, without any
proclamation by the mayor or action OF the
city council, votes were cast for William
Sexauer and G.. w. Doane for treasurer.
Sexauer received a majority of the votes
cast but Buck refused to surrender the
Office. Sexauer carried the case to the SUI
preme court on quo warranto proceedings,
and IL was decided against him. The court
held that where the election is one that the
authorities may or may not hold, at their
option, and they decide against holding the
same, individual citizens must acquiesce."
II was also held that there was mo au-
thority for the voters of said city to I'LL a
vacancy In the office OF city treasurer with
out a resolution OF the city council or proc
lamation OF the mayor for that purpose"
In passing upon the case the supreme court
also held that the election held in 1882 was
not a general city election" for the election
OF city treasurer.
Judge Keysor said he would follow the
rule thus laid down by the supreme court
and would deny the application for writ