The following opinion on motion for rehearing was filed September 26, 1913. Rehearing denied, and ease dismissed:
Sedgwick, J.Counsel for relator have filed an ingenious brief upon their motion for rehearing, in which they assert: “If the opinion already rendered in this case stands, the legislature will never be able to provide for a police magistrate’s court for prescribed districts and also for municipal courts for cities and towns, but will be limited to just the one court, that of the police magistrate. So far this court recognizes but one of these courts. By its opinion herein this court has entirely nullified that part of section 1, art. VI of the constitution, that authorizes the legislature to create municipal courts for cities and towns. And this was done without naming that section at all.”. They then ask the question: “Does the court want to leave these questions in this chaotic condition?”
The two questions determined in our former opinion (ante, p. 232) herein seem so clear and simple as not to require further comment, but the matter is of so much importance, and counsel are so vigorous and persistent in suggesting difficulties in the way of city authorities, that we have concluded to attempt an answer to some of their many contentions more or less related to the matters involved in this litigation. In the former opinion it is determined that the length of the' term of office of police magistrates is fixed by the constitution, and the legislature cannot shorten the term, and cannot legislate the incumbent out of office during the term for which he was elected; that this is the only limitation upon the legislature in regard to this office, and therefore the legislature may, by appropriate legislation, provide for the election of such officers at the municipal election or at the general *239election as it sees fit. Under the statute as it then existed the respondent was elected in the spring of 1911, and, as the constitution fixes his term at two years, the subsequent act of the legislature changing the time of the election to the general election in the fall of that year could not have the effect to shorten his term. In answer to this reasoning it Avas contended that the constitution also fixed the time of the election at the general election, and therefore the statute under which respondent was elected was inAralid, so that there could be no valid election in the spring of 1911, and respondent was therefore not entitled to the office. This answer was based upon the further contention that the office of police judge in the city of Kearney is not a municipal office, and therefore not within the exception of section 13, art. XYI of the constitution. This last point was the gist of the controversy; it is the point relied upon in the dissenting opinion, although that dissent is wholly based upon the opinion in State v. Mayor, 91 Neb. 304, 852. The majority thought that, a reargument having been allowed in that case and the case having been disposed of by settlement of the parties thereto before the formal hearing was had, the opinion first filed should not be regarded as a precedent, and, even if it was so regarded, it was so manifestly wrong in holding that a police officer of a city is not a municipal officer that it ought to be overruled.
It was not held in our former opinion that the act of 1911 (laws 1911, ch. 23) is in any respect invalid. It was only held that that act could not have the effect to oust from office before the expiration of his term one who was duly elected and qualified before that act took effect. This, as before stated, was solely because the constitution fixed the length of the term. On the other hand, it was expressly held that “the legislature may by statute provide the time of their election.” When the legislature has provided the time, an election may be held at the time so provided to fill a vacancy that may exist by the expiration of the term of the incumbent. The election of Mr, Hand *240in the fall of 1911 was void because there was then no vacancy to be filled. The constitutional term of the respondent had not expired.
We cannot see any dilemma for the legislature, as suggested in the above quotation from relator’s brief. By section 1, art. VI of the constitution, the legislature may establish' courts inferior to the district court for cities and incorporated towns. Such courts “for cities and incorporated towns” will of course be municipal courts, and the legislature may provide the time of election, and, except for police magistrates, may also fix the term of office. The constitutional limitation of the power of the legislature to alter the length of the term of police magistrates may not be necessary, but section 20, art. VI, seems to so provide and has been many times so construed. Section 18, art. VI, provides that police magistrates shall be elected, “in and for such districts * * * as may be provided by law.” If under this provision the legislature should divide our larger cities into districts and provide for the election of a police magistrate in and for each district, such police magistrates would still be municipal officers. They would in a sense be district officers; that is,, they would be elected in and for a municipal district. When the constitution was adopted there were established courts in existence in this state with well-known jurisdictions, called “district courts.” These courts were continued by section 1, art. VI of the constitution.
The legislature may establish “other courts” which must be inferior to the “district courts,” .but the district courts are continued in existence by the constitution itself. To say that, because the legislature may establish courts “inferior to the district courts” which are the creatures of the constitution, it therefore follows that, if the legislature divides a city or town into districts and authorizes a police court in each district, such court becomes a “district court,” within the meaning of the constitution, and bpcause it is a district court it cannot be a municipal court. *241seems puerile in the extreme. If such a court can be called, a district court of the municipality or a district court in any other sense, it is not the “district court” which the constitution requires and permanently establishes. And if it is a district court in any sense, even if a constitutional court, it would still be also a municipal court. But it is not established by the constitution, and any court that the legislature may establish for the city is a municipal court, and is wholly within the power of the legislature, with the one exception that the term of police judge must be two years. If the court established by the legislature for the city is not a police court, then this exception does not exist. In State v. Moores, 70 Neb. 48, it is said in the opinion of Mr. Commissioner Granville that the police judge of Omaha is a district officer, and not a municipal officer. This statement is a clear non sequitur, as already shown. The statement had nothing to do with the case then being considered. The point decided and the law of the case are stated in the syllabus. The conclusion reached is right, and the mistake of the court was in not placing the opinion in the unofficial reports.
There are several other decisions of this court involving the controversy of Judge Gordon as to his office and salary. In some of- these decisions there are expressions used arguendo which perhaps are somewhat misleading. But the questions raised and decided are simple and rightly determined.
Prior to 1897 the charter of Omaha provided that the police judge or police magistrate should be elected at the general election in the fall, and the salary should be $2,500 .a year. In 1897 the legislature amended the charter, and provided that the police judge should be elected in the spring, and the salary should be $1,200. Gordon was elected to the office in the fall of 1895 for a term of two years, beginning in January, 1896, and ending in January, 1898. An election was held in the spring of 1897 under the new act, and Gordon received a plurality of the votes cast. Prom that time the authorities refused to pay him *242more than $1,200 a year, and he brought an action in mandamus to compel them to pay him at the rate of $2,500. The court held (State v. Moores, 61 Neb. 9) that the act of 1897 was void, and that the relator was holding under his election of 1895, and that until his successor was duly elected and qualified he held as of his original term, and was entitled to his salary of $2,500 a year during all of the time that he so held. This holding was followed in several subsequent cases. Then in the fall of 1901, at a general election, Gordon was a candidate, and Berka was also a candidate. Berka was elected for the term commencing in January, 1902, and duly qualified and performed the duties of the office. Gordon brought another action in mandamus to compel the authorities to pay him a salary for the years 1902 and 1908, and it was held (State v. Moores, 70 Neb. 48, third paragraph of the syllabus) : “That a successor to relator for the office of police judge has been elected and qualified; that relator was not the incumbent of such office during the time for which he is seeking herein to enforce payment of salary, and that the writ prayed for was properly denied.”
This was of course clearly right. The attempted legislation of 1897 had been held to be void. The term, therefore, was, as it always had been, for the two years commencing in January, and the police judge was, as he always had been, elected at the general election in the fall. Gordon had been alloAved to hold over until his successor AAras duly elected at the fall election and had qualified and served, then he was refused any salary from that time on. That was what was decided in State v. Moores, 70 Neb. 48, and nothing else Avas decided, as will appear from the reading of the syllabus in that case. In the two opinions that were, filed in that case, there is no clear and consecutive statement of the facts upon which the decision was founded. It was not necessary to discuss whether the police magistrate was a district officer or a municipal officer, and it does not appear that any such question was presented, or discussed by the counsel. The statement that *243it was a district office had nothing to do with the case. There was a rehearing granted, and Commissioner GlanVILLe's opinion was done away with. In Commissioner Oldham's opinion there is also some language arguendo which is now construed to mean that the office of police magistrate is not a municipal office, but no such point was decided in the case nor necessary to the decision.
To say that an officer elected by the voters of a municipality to an office established by the legislature in and as a part of the city charter, an officer who must hold office Avithin that municipality, whose chief function is to construe and enforce the ordinances of the municipality, whose bond is presented to and approved by the municipality, is not a municipal officer, Avithin the meaning of the constitution, appears to be ridiculous upon its face. The voters of the city elect him as they elect other officers of the city, and the intention of the constitution was to alloAV them to elect all municipal officers at the same election. The act of 1897 Avas not held invalid because the legislature could not provide for electing the police judge at the city election, but because they attempted to change the length of the term, which the constitution does not allow. The first case (61 Neb. 9, opinion by Justice Nor-val) clearly states this.
The motion for rehearing is overruled, and the case
Dismissed.