Omaha daily bee., 1907-04-27
No MANDAMUS FOR SHAW
Present City Engineer Declared Legal
Inouubsnt By Judge Kennedy.
asURetNTs THREATEN TO APPEAL CASE
Election of Thomas shaw Invalid,
since Original Appointee ms Rose
waters Successor Declined
and Latter Qualihed.

In an opinion handed down Friday after
noon Judge Kennedy decided Andrew Rose
water is entitled to hold the office Of city
engineer as against Thomas Shaw, who
claimed election by the city council In
brief, Judge Kennedy decides that upon
failure Of Jesse Lowe TO qualify It was
Mr. Rosewater's right TO qualify anew
within ten days and. having exercised this
right, the council was without authority
to elect Mr. Shaw.
John p Breen. one of the attorneys for
Shaw, said after the decision he woul1
probably appeal the case to the supreme
court. Mr. Rosewater declared he was
much gratihed that his position in the
controversy was vindcated. He said he
would Immediately proceed to reorganize
his force In accordance with the new law,
House Roll No. 49, which gives him gem
eral supervision over public works, except
street cleaning.
Text of Decision.
The opinion Of Judge Kennedy is as fol-
lows:
This " an action OF mandamus on the
relation OF one Thomas shaw 10 compel
one Andrew Rosewater to surrender to the
Telator the possession Of the office OF CITY
engineer OF the city of Omaha,
Some months previous to this proceeding
this once by the mayor and his appoint
ment had been confirmed BY the city coun-
Gil. but he had failed to qualify as such.
Immediately upon the expiration OF the
period within which Mir. Lowe was oy law
required to qualify, and upon his tallure
50 to do. the respondent Mr.. Rosewater,
who was the Incumbent OF the ofhce hold
ing over pending the appointment and
Qualification Of his successor, executed and
nled bond with an oath OF office en-.
dorsed thereon, which bond was approved
BY judge Of the district court and by
| the mayor Of the city IN pursuance OF an
ordinance enacted by the city council. The
mayor made no further appointment TO the
| office, but some time thereafter the city
| council undertook to elect the relator, Mr
| Shaw, city engineer, and he took the re-
quired oath and gave bond, approved by
a Judge OF the district court and by tht
| city council, and thereupon demanded and
/ was refused possession OF the office.
! Il Is contended by the relator that upon
/ the failure of Mr.. Lowe to qualify 1t be-
| came the duty ofthe mayor to submit Other
| appointments for such ofilce on every regu'
| lar council meeting thereafter until such
/ an appointment should be confirmed, anc
| city council to flll such office by election
| Sections a, IS and 70 Of the charter are re
lied on justifying this contention.
| The respondent contends that these sec
| tions are innpplicable and relies upon sec
| ton II Of chapter Kilt of the Compiled
| Statutes, section s016 of Cobbeys Ammo
| tated Statutes, 1903, which provides tina
| when II Is ascertained that the incumben
! of an of1ce holds over by reason Of th'
| neglect or refusal Of the successor to quail
| ify he shall qualify anew within ten day.
from the time at which his successor
| should have qualified"
Section IS OF the charter provides that "th'
| general laws Of the state governing public
offices, so far as applicable, shall govern
| and fix the bonds &c be given by officer
! reGppointed, reelected or holding over,
| and thic would seem to refer specifically
| to section 9O16 before mentioned.
! The supreme court of this state in Rich
ards against Mcmillan. S6 Neb., S52, $50
sa1.e 9fr=rtsa n afn nj "a
the right OF the defendant in error on th'
failure Of his successor-elect to qualify b!
reason OF his ineigibility was to hold over
or becoTAe his own successor upon gtvinl
| a new bond and taking the oath Of ottic
precisely as IL he had been elected to sue
ceed himself. In other words, the statut
contemplates that he should enter upon
new and different term upon complying
with the statutory conditions and not other
wise"
A similar view is indicated by the cour
In state, ex rel Roche against Cosgrov5
81 Neb., 9S6, S91, Ss2.
There being nothing incompatible between
the several charter provisions and the gen
eral statute, they should be construed TO
gether, and so construed am of opinion
that upon the failure of Mr. Lowe I
to qualify anew within ten days and tina
having exercised this right the council wa
without authority to elect Mr. Shaw
/ am also OF opinion that the action o
the city council In paying the premium o
Mr.. Rosewater's bond was a sufficient an
provRl of the bond by that body, II suc
approval was necessary.
The other questions presented in the in
structive and interesting argument of thi
case IL ia unnecessary now to decide,