The following opinion on rehearing was filed April 21, 1904, Judgment of affirmance adhered to:
1. Municipality: Office of Police Judge. The office of police judge or police magistrate of an incorporated city is called into existence by the constitution. State v. Moores, 61 Neh. 9, followed and approved. 2. Action: Title to Office. The right to an office occupied by one claiming title thereto under a certificate of election, can not he determined in a suit instituted'by an adverse claimant for the salary of the position. Oldham, C.The original opinion in this case by G-lanville, O., is reported ante, p. 48, and contains a full and careful statement of the various issues that haAre been joined and determined in this court in the long continued' contest betAveen the relator and the mayor and council of the city of Omaha, over the emoluments of the office of police judge or police magistrate of the city of Omaha. A rehearing Avas granted for the purpose of considering relator’s claim to the salary of this office for a portion of the year 1902, on the theory that he is not a police magistrate authorized by section 18, article YI of the constitution, but that he is, in fact, a police judge, a municipal and not a constitutional officer, authorized by the laAvs of Nebraska, 1869, p. 29, entitled “An act to incorporate cities of the first class,” and that he AAras elected as such officer at a regular general and city election, held in November, 1895, and has ever since held over and still continues to hold over as his oavu successor under such election, and that all other subsequent elections at Avhieh he has ever been elected or defeated for said office, have been unauthorized, and his claim to the salary of this office is entirely unaffected by his participation as a voter or a candidate in such subsequent elections.
It is conceded by counsel that Ave are bound by all our former adjudications as to relator’s right to the salary of this office up to the 7th day of January, 1902, and that fill questions formerly adjudicated in this controversy are noAv a part of the laAv in this case; so we Avill cursorily revieAV our former adjudications for the purpose of deter*58mining whether or not relator is a police magistrate authorized by the constitution, or a municipal officer authorized by the laws of 1869, supra. The first contest over the salary of this office between the relator and the mayor and council of Omaha grew out of the fact that in 1897 the legislature passed an act creating a new charter for the city of Omaha, wherein the term of the office of police judge was changed to three years, and the compensation of the office was reduced to $1,200, and we held in a carefully considered opinion by Norval, J., that the office of police judge or police magistrate of the city of Omaha is called into existence by the constitution, and the enactment attempting to change the term and the salary of the office was held to be unconstitutional and void. See State v. Moores, 61 Neb. 9. The next controversy affecting the relator’s right to the emoluments of the office was before this court in the case of Gordon v. Moores, 61 Neb. 345, and rose from the fact that an attempt had been made to remove the relator from the office of police judge by the district court for Douglas county, for malfeasance in office. In this action it was determined that the statutes conferring such jurisdiction on district judges in metropolitan cities (laws, 1897, ch. 10) was void for attempting to confer a special jurisdiction on district judges in cities of the metropolitan class. In the opinion it was said by Sullivan, J.:
“But a police judge, like a justice of the peace, is a constitutional officer, and the power to remove him is precisely the same power Avhether he holds his commission from a city of the highest or the lowest rank.”
The controversy was next before this court in the case of Moores v. State, 63 Neb. 345, and was a contest for the salary for the year 1900. In this case the respondent sought to defend by assailing the constitutionality of the statutes conferring jurisdiction on police judges in cities of the metropolitan class. In disposing of this controversy, we held that the office of police magistrate or police judge was called into existence by the constitution. The next *59controversy before this court was over the salary for the year 1901. See Moores v. State, 67 Neb. 535. Here the chief question involved was the right of the city council to deduct from the salary of relator, the amount paid to an intruder, ivlio wrongfully attempted to exercise the duties of the office, while the relator was prohibited from doing so by a void, judgment of the district court for Douglas county. In this controversy Ave held that the relator Avas both a tie facto and a tie jure officer during all this time and was entitled to the compensation, notAvithstanding the fact that it may have been paid to a usurper. Noav it will be seen from this brief- review of our former decisions, that relator has heretofore successfully maintained his claim to the-honors and emoluments of this office, solely on the ground that the office of police judge or police magistrate Avliich he claimed to hold Avas an office called into being by section 18,-article VI of the constitution; consequently Ave think that relator is not noAV in a position to deny that he is a police magistrate authorized by the constitution. The next contention of the relator is that no district is provided in the constitution for police magistrate or for justice of tin* peace, but that the formation of districts for these officers is relegated to the legislative power of the state, and that no district has ever been formed in Omaha for a police magistrate by any valid legislative enactment. The answer to this may be that the act of 1869 did constitute the city of Omaha into a district for a police judge and that the constitution subsequently enacted reserved the existence of all laAVS not in conflict with its provisions. Consequently this act may be construed into constituting the city of Omaha into a district for a police magistrate. And it Avas evidently in view of this construction of the law, that the relator Avas elected police judge in the city of Omaha at the regular general city and state election held in 1895, and presumably for the term of tAvo years or until his successor, should be elected and qualified. While it is true that relator received a majority of the votes cast in the spring election *60held in the city of Omaha in 1897 under a void enactment, yet he subsequently repudiated his claim to the office growing out of such election, and asserted his right to become a candidate at the regular general election in 1899, and was elected and qualified under such election. And again in 1901 he procured the nomination as a candidate for the office and contested the election, with the present incumbent, Louis Berka, and was defeated, the certificate of election being awarded to the said Louis Berka, who qualified and has entered upon the active discharge of the duties of the office under claim of right based upon his certificate of election and his official oath and bond filed in conformity thereivith, and is recognized as the police judge by the city officers of Omaha.-
It is. a well established rule that the right to an office occupied by one claiming title thereto, under a certificate of election, can not be determined in a suit instituted by another claimant for the salary of the position. But under such circumstances the adverse claimant must first establish his right to the office by proceedings in the nature of quo warranto against the occupant. Belby v. City of Portland, 14 Ore. 243; Lee v. Wilmington, 1 Marvell (Del.), 65; Hagan v. City of Brooklyn, 126 N. Y. 643; Dillon, Municipal Corporations (4th ed.), sec. 844.
Hastings and Ames, CO., concur. By the Court:For the reasons stated in the foregoing opinion, it is ordered that the former judgment of this court be adhered to.
Affirmed.