
    The State of Nebraska, ex rel. Samuel J. Stevenson, v. Richard A. White.
    Cities of Second Class: vacancy in office or police judge. In 1881, N. City was a city of the second class, having not less than fifteen hundred inhabitants. In that year W. was elected police judge of that city and was re-elected in 1883 and 1885, and qualified, and has continuously performed the duties of the office. In 1886, N. City was declared a city of the second class, having not less than five thousand inhabitants, and S. was elected police judge thereof, and thereupon brought an action to oust the incumbent from that position and to be installed therein; Held, There being no provision in the statute declaring the ofilce of police judge vacant, that the mere change from a city of the second class of the minimum number of fifteen hundred to a city of the secondAlass of not less than five thousand inhabitants did not vacate the office of police judge, the duties in each case being substantially the same.
    QUO WARRANTO.
    
      Samuel J. Stevenson (Frank T. Ransom with him), pro se.
    
    
      John G. Watson, for respondent.
   Maxwell, Ch. J.

In 1881, Nebraska City was a city of the second class, having more than fifteen hundred and less than twenty-five thousand inhabitants, and in that year the defendant was elected police judge of said city for the term of two years. In 1883, and again in 1885, he was re-elected and qualified, and under his election in 1885, is now performing the ’duties of the office. In 1885, the legislature passed an act to amend certain sections of the “ act to provide for the organization, provision, and powers of cities of the second class having more than ten thousand inhabitants,” approved March 1st, 1883, and another act amending certain sections of the act of March, 1883. Under these amendments all cities having mpre than five thous- and inhabitants, and less than thirty-five thousand, were, upon the proclamation of the governor to that effect, to become cities of the second class, having more than five thousand inhabitants, and to be governed by the provisions of the statute in relation to such cities. Comp. Stat., Chap. 14, Art. II.

Section eleven, as amended, provides for annual elections, and for the election of a mayor, treasurer, clerk, and police judge, each of whom shall hold his office for the the term of two years.

Under this amended statute Nebraska City was declared to be a city of the second class under the act of 1881, as amended in 1883 and 1885. It must be understood that this description of cities of the second class occupies an intermediate grade between cities having not less than fifteen hundred inhabitants, and less than twenty-five thousand inhabitants, and cities of the first class, and is governed by a statute differing in some of its powers and details from cities of the second class containing not less than fifteen hundred inhabitants.

The relator was elected police judge at the annual election in April, 1886, and now seeks to oust the defendant from that office. The question for determination is, did the change of the government of Nebraska City from a city of the second class of not less than fifteen hundred inhabitants to a city of the second class of not less than five thousand inhabitants vacate the office of police judge? We find nothing in the statute in relation to the matter, nor that any of the city officers whose term had not expired should cease to exercise the duties of his office. Neither has any case been cited showing that such result would naturally follow the change of the form of government. Although the form of government of a city may change in some of its details, the corporation itself does not change; it is still a city, with, its liabilities and duties differing in some respects, but substantially the same, whether clothed with the powers of a city of the second class of the minimum number of fifteen hundred or of five thousand. The duties of police judge- are substantially the same whether performed under the former- city government or the present. There would seem to be no necessity therefore for declaring the office vacant in the middle of the term of the present incumbent, and in the absence of any expression of the legislative will on that subject we must hold that the term of the defendant does ■not expire until 1887. The writ must therefore be denied and the action dismissed.

Judgment accordingly.

The other judges concur.  