Omaha daily bee., 1897-11-19
CASE TURNS UPON TWO PRINCIPLES
Law Invalid for One is Invalid for
the Other, and Claimant Cam
not Go in and out OF
Office at VIII.

in the Omaha Fire and Police Commission
case, denying the writ prayed for by p. w.
Birkhauser. The syllabus Of tho opinion is
as follows:
/. one who seeks by quo warranto to OBJ
tain possession of public office must show
a better title than the incumbent.
?. In a proceeding in the nature of quo
warranto brought by a private person to
determine the right to public office. the
relator cannot assall the constitutiouaiity of
the statute under which the respondent
claims to hold such Office basis for
Judgment Of custer when the argument ad-
duced by relator for declaring the law bad
applies with equal force as against the
statute under which he himself asserts title
to the office.
3. one who voluntarily abandons or sur
renders a public office to another will not
afterward be permitted to assert title
thereto against such subsequent incumbent.
TEXT OF THE OPINION.
The opinion is by Justice NorvIi. the other
judges concurring. The following is the full
text.
This is an action of quo warranto in
stituted in this court by A. c. Foster. H
E. Palmer and =. w. Birkhauser to de-
termine the rights of REALTORS and re-
spondents respectively to the offices OF fire
and police commissioners of the city OF
Omaha. Realtors were appointed to said
Offices by a board, consisting of the gov-
ernor. commissioner OF public lands and
buildings and attorney general created by
section l45 chapter XIII compiled statutes
1895. which said chapter is entitled "Cities
of the Metropolitan Class" The last state
legislature created a new charter for the
government of cities of the class to which
the city of Omaha belongs, and by the
same law, in express terms, repealed the
said Chapter Niia, of the Compiled Stat
utes of Nebraska, Seventh Edition. 1885"
Session laws 1897, chapter X, section l66 OF
said act known as chapter xiia. complied
statutes 1897 declares that: In each city
of the metropolitan class there shall be
a board of fire and police commissioners to
consist of the mayor. who shall be en-
officio chairman of the board, and four
electors of the city, who shall be appointed
by the governor"
By section l6T it is provided substantially
that Immediately upon the taking effect
thereof the governor should appoint for
each city embraced within the law four
fire and police commissioners, of whom
not more than two should belong 10 the
same political party, one TO serve for one
year, for two years one for three
years and one for four years; and that
the governor should annually thereafter
appoint one commissioner in each of such
cities for the term of four years. The sec
ton also makes provision for the filing OF
vacancies occurring in said offices.
The respondent, Frank E. Moores is the
duly qualified and acting mayor Of the city
of Omaha and by virtue OF said sec
ton 1866 claims to be ex-officio
member and the chairman OF the
board of fire and police commissioners of
said city. The other four respondents claim
10 be members of said board and the
right TO discharge the duties thereof by
virtue of appointment made by the gov
ernor under the provisions of said section
ls7 The REALTORS, Foster and Palmer.
leave Of court having first been obtained.
have dismissed the proceedings as TO them
selves and the action thereafter was pros
ecuted in the name of Birkhauser alone.
ENTIRE ACT IS ASSAILED.
In this proceeding the constitutionality OF
the entire act of which said sections form
parts is assailed upon the same grounds.
among others, as those urged and presented
against the law in State against Stuht,
Fifty-second Nebraska (71 n. W. Rep. siD.
where the validity of the legislation was
sustained. The writer had no part in that
decision and does not wish 10 be under
stood as now agreeing that the conclusion
then reached by his associates was sound.
discussion of the questions there con-
sIdered will not be undertaken at this time.
since the writ OF custer sought herein must
be denied for reasons hereafter stated.
1t is important to remember that this ac-
lion was not instituted Dy NHe attorney
general. but was brought by private persons
asserting the right 10 the Offices in ques-
tion. Had the attorney general been the
reiator IL would have devolved upon the re-
spondents to show that they were right
fully inducted into office. In other words
that they were appointed and are acting
under a constitutional law State against
Tillma, % Neb. 7sO When the informa-
tion is filed by private person the same
rule does not obtain. He is required to
show that his title to the office is better
than the incumbent and must recover. II
al all, upon the strength Of his own titlc
and not upon the weakness of the claim of
his adversary. This doctrine Is not new.
but has been more than once asserted by
this court (State against Stein. IS Neb.. b29:
State against Hamilton, z9 Neb., lss; state
against Boyd a Neb., 4S5).
The principal argument OF counsel for re-
lator is that said sections l65 and lsT OF tle
act OF 1897 are uncons titutional and void be-
cause they are inimcal to the Inherent right
OF local self government Precisely the same
objection could be successfully made against
toe statute under which Mr.. Birkhauser Eas
appointed. In violation OF the principle OF
local self government it empowered the gov
ernor. commissioner OF public lands and
buildings and the attorney general 70 ap-
point the fire and police commissioners for
cities OF the metropolitan class; while un-
der the existing law, that duty was devolyed
upon the governor alone. The reasons and
arguments adduced for declaring the 1887
law bad. II sound. would likewise make clear
the inyalidity OF the act under which the
re!ator was appointed to Office: hence, under
the decisions mentioned, he could not sue
cessfully prosecute this action.
ABANDONED HIS OFFICE.
Another contention Of respondents, which
Is not devoid Of merit. is that ihe writ must
be denied for the reason the relator yoiua-
tarily abandoned the Office in question and
ackuoR ledged the right Of the incumbents
to discharge the duties pertaining 10 the
Board Of Fire and Police commissioners or
he city OF Omaha. This the relator denies.
and on his direct examination as "itnezs
ln his own behalf he teslihes that IL neys1