The facts sufficiently appear in the opinion. This is an original proceeding in the nature of quowarranto, to determine whether relator or respondent is entitled to the office of school trustee, long term, of Austin school district, in Lander county.
The district attorney of the county, who is ex officio county superintendent of schools, and in whom is vested authority to fill all vacancies in the office of school trustee, deeming that a vacancy existed for the reason that relator had not taken the oath of office as required by law, and that he had *Page 277 ceased to be a resident of the town of Austin, in which the duties of his office were to be exercised, appointed respondent to the vacancy.
It is tacitly conceded that at the school election in the month of May, 1900, relator was elected long-term school trustee, and was acting as such when he was displaced by respondent.
It was shown that relator was regularly sworn, and took and subscribed to the official oath introduced in evidence in this case before a duly appointed and acting notary public of the county, but the jurat of the notary is not authenticated by his official seal. The seal of the officer would have been prima facie evidence that the oath had been taken, but it was not the only evidence of the fact. It was competent for relator to have shown, as he did show by oral evidence, that the oath was in fact taken. In this connection it is urged that the oath was not indorsed upon the certificate of election. Section 1804, Comp. Laws, requires that the oath shall be indorsed upon the certificate of election and signed by the officer. The substantial purpose of this requirement is the qualification of the officer, by taking and subscribing to the oath, and this was accomplished. The provision that the oath shall be indorsed upon the certificate of election is directory merely, and no penalty is imposed for its non-performance.
Upon the question of residence relator testified that he had been a registered voter of the town of Austin ever since the year 1882, and had resided with his family for the past sixteen years in a house owned by Mrs. Stebbins, his wife's mother; that he was by profession a locomotive engineer, and had been employed as such by the Nevada Central Railroad Company upon its line of railroad between Battle Mountain and Austin; that he became unemployed, and, about October 14, 1900, went to Jefferson, in Nye county, to assist his brother-in-law in caring for a band of sheep which they jointly owned. He returned to his home in Austin two or three times each month. Christmas day he brought Mrs. Stebbins from Jefferson to Austin, and remained there until December 31st. January 14th he took his wife and children with him to Jefferson.
In reply to the question, "What, if anything, was done *Page 278 with reference to breaking up your household in Austin?" he said: "Nothing whatever. I took my wife and two children in the light spring wagon, and left everything in the house — bed, provisions, sewing machine, and the winter's wood — left everything, took nothing, except a small trunk; no bedding, not a thing in the world except a little trunk." His wife returned for a couple of days in the month of March for the purpose of using the sewing machine that they had left behind. The family finally left Jefferson and went back to Austin during the latter part of the month of August.
He testified that he attended a meeting of the school board each month except the month of February, and that he always intended to return to Austin.
This testimony was practically uncontradicted, and needs the aid of no argument to convince us that relator had not lost his residence in the town of Austin.
It is ordered that a judgment of ouster be entered against respondent, with costs.