25-21,146. Action by claimant against incumbent of office; condition precedent.

When any citizen of this state shall claim any office which is usurped, invaded or unlawfully held and exercised by another, the person so claiming such office shall have the right to file in the district court an information in the nature of a quo warranto, upon his own relation, and with or without the consent of the prosecuting attorney, and such person shall have the right to prosecute said information to final judgment; Provided, he shall have first applied to the prosecuting attorney to file the information, and the prosecuting attorney shall have refused or neglected to file the same.

Source

Annotations

1. Scope of action

2. Condition precedent

3. Miscellaneous

1. Scope of action

A person claiming an office that has been usurped or invaded by another may maintain an action in quo warranto. State ex rel. Brogan v. Boehner, 174 Neb. 689, 119 N.W.2d 147 (1963).

Quo warranto to try title to office will lie, even though validity of election and existence of office are drawn in question. Thompson v. James, 125 Neb. 350, 250 N.W. 237 (1933).

Teacher claiming to have been wrongfully dismissed may bring quo warranto to test right of successor to take his place, and force dismissal. Eason v. Majors, 111 Neb. 288, 196 N.W. 133 (1923).

Quo warranto applies only to claimants of office, and is not proper action to test constitutionality of law creating office. State v. Scott, 70 Neb. 681, 97 N.W. 1021 (1904).

Quo warranto should be brought in Supreme Court by Attorney General, in district court by county attorney, and by individual where officer refuses. State ex rel. Fair v. Frazier, 28 Neb. 438, 44 N.W. 471 (1890).

2. Condition precedent

In a suit under this section, consent of Attorney General or county attorney is not required. Sorensen v. Swanson, 181 Neb. 205, 147 N.W.2d 620 (1967).

Individual relator must allege refusal of county attorney in information. Harpham v. State ex rel. Cruse, 63 Neb. 396, 88 N.W. 489 (1901).

Consent is evidenced by county attorney prosecuting action filed in relator's name. Duffy v. State ex rel. Edson, 60 Neb. 812, 84 N.W. 264 (1900).

3. Miscellaneous

Private relator in statutory quo warranto contesting an election with knowledge of election irregularities may not be entitled to relief for that reason in certain circumstances. State ex rel. Genz v. Thomas, 185 Neb. 637, 177 N.W.2d 607 (1970).

Relator must show better title than respondent. State ex rel. Thayer v. Boyd, 34 Neb. 435, 51 N.W. 964 (1892).

Information that does not show relator's title is demurrable. State ex rel. Cooper v. Hamilton, 29 Neb. 198, 45 N.W. 279 (1890).