Glanville, C.
This action is before us on petition in error from the district court for Douglas county, seeking to reverse the judgment of that court denying a peremptory writ of mandamus to the relator, to compel payment of salary to him as police judge; and constitutes one more chapter in the long standing contention and litigation whereby the relator has sought to continue to hold the office of police judge of the city of Omaha at a salary of $2,500 a year. In the view we take of the case in its present condition, and of the questions involved, it will be necessary to take up the previous adjudications and discuss them with a view of distinguishing those points that have become res judicata from those that are open to determination in this action.
Contention is made by the respondents herein that the relator was not elected and qualified as police judge at the beginning of his term of services in January, 1896. We think the bill of exceptions clearly establishes such election, if it were an open question, but we think it also establishes that he was not qualified as a de jure officer at that time, except by the evidence therein contained showing that this question has been heretofore adjudicated in his favor. We say this because it is clearly shown that the oath of office subscribed by him after his first election was not the oath required by the constitution, and that he did not properly qualify. See Duffy v. State, 60 Neb. 812.
[50] Because of a provision in the Omaha charter of 1897,..at-tempting to provide for the election of a police magistrate for the term of three years in April, 1897, and every three years thereafter, an election for such office was attempted in April, 1897, and no election for such office was held in any manner at the general election in November of that year. At such attempted election in April, the relator' received the majority of the votes, was declared elected and attempted to qualify, and thereafter respondents contended that he was entitled to a salary of but $1,200 per annum, being the salary fixed in the 1897 charter.
After it was announced in State v. Stuht, 52 Neb. 209, that the term of office of police judge could not be changed from two years to three years, because of the provisions of our constitution, the respondents paid the relator the salary fixed by the old charter to the expiration of his first two years’ term.
Relator continued to perform the duties of the office of such police magistrate during the years 1898 and 1899, the respondents regularly making for his use a warrant of $100 for each month, which, however, he did not accept, and he finally brought mandamus proceedings in the district court for Douglas county to compel payment for the two years at the rate of $2,500 per annum. The case was brought to this court and decided in favor of relator. State v. Moores, 61 Neb. 9. The complete record in that case forms a part of the bill of exceptions in this, and from its examination we think it has become res judicata that the relator was elected and qualified for his first term, and has also been established as the law that during the continuance of that term the relator is entitled to a salary at $2,500 a year. For the regular election held in the city of Omaha in the year 1899, nominations were made for the office of police judge and relator was a nominee. An election was held, resulting in the relator’s receiving a majority of the votes cast. He so far acquiesced in this as to give bond and take the oath of office, and in this instance did take the oath prescribed by the constitution for judi[51] cial officers. An attempt was made to remove him from office but the proceedings were held under a void provision of law, and nothing affecting the rights of either party could be determined therein. See Gordon v. Moores, 61 Neb. 345.
Another action was commenced by relator to compel payment of his salary for the year 1900; and was brought to this court and decided in his favor. Moores v. State, 63 Neb. 345. In the opinion by Oldham, C., it is said:
“In the court below, respondents, by their answer and return, tendered the issue that the relator was the acting-police judge of the city of Omaha for the year 1900, and that he was entitled to a salary at the rate of $1,200 per annum; but in this court counsel for the respondents abandoned that issue.”
The record in that case is also a part of the bill of exceptions, and therein plea is distinctly made by the return to the writ that the relator, was elected in 1899 and qualified, and that he was not holding over at that time but was in for a neAV term under a new election, and that the salary fixed by the charter of 1897 is the salary he was entitled to. In reply to the return, the relator pleaded res judicata by the judgment in State v. Moores, 61 Neb. 9. It will be seen, then, that it has thereby become res judicata, either that the charter of 1897 Avas ineffectual to change the rate of pay of the police judge, or that the relator during the year 1900 was still holding over by virtue of his first election and qualification and his subsequently qualifying as a hold-over officer.
The bill of exceptions in the last named case is made a part of the bill of exceptions in this case, and the evidence therein contained shoAvs that the relator was regularly nominated by the people’s independent and democratic parties as a candidate for police judge of Omaha, to be voted for at the November election, 1899, and that, if such election could then be held, he was elected, and in due time entered into a bond reciting such election and took the oath of office on the 28th day of December, 1899. While the [52] issues of fact in that case were authoritatively settled by the judgment therein, and it was thus established that during the year 1900 the relator was “holding over,” we do not think that it could be thus authoritatively determined that no election for a police judge of the city of Omaha could take place at the proper one of the general elections provided for in the constitution, in the absence of any special legislation providing for the holding of such election.
Thereafter, a similar action for the salary for 1901 was commenced, carried to this court and decided in favor of the relator in the case of Moores v. State, 67 Neb. 535. The record in this action is also a part of the evidence contained in the bill of exceptions, and shows that the relator pleaded previous adjudication by the decision in the case in 61 Neb. 9, and it was correctly decided in favor of the relator because of the previous adjudication pleaded, as no new fact or issue entered into the case except such previous adjudication.
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Glanville, C.
This action is before us on petition in error from the district court for Douglas county, seeking to reverse the judgment of that court denying a peremptory writ of mandamus to the relator, to compel payment of salary to him as police judge; and constitutes one more chapter in the long standing contention and litigation whereby the relator has sought to continue to hold the office of police judge of the city of Omaha at a salary of $2,500 a year. In the view we take of the case in its present condition, and of the questions involved, it will be necessary to take up the previous adjudications and discuss them with a view of distinguishing those points that have become res judicata from those that are open to determination in this action.
Contention is made by the respondents herein that the relator was not elected and qualified as police judge at the beginning of his term of services in January, 1896. We think the bill of exceptions clearly establishes such election, if it were an open question, but we think it also establishes that he was not qualified as a de jure officer at that time, except by the evidence therein contained showing that this question has been heretofore adjudicated in his favor. We say this because it is clearly shown that the oath of office subscribed by him after his first election was not the oath required by the constitution, and that he did not properly qualify. See Duffy v. State, 60 Neb. 812.
[50] Because of a provision in the Omaha charter of 1897,..at-tempting to provide for the election of a police magistrate for the term of three years in April, 1897, and every three years thereafter, an election for such office was attempted in April, 1897, and no election for such office was held in any manner at the general election in November of that year. At such attempted election in April, the relator' received the majority of the votes, was declared elected and attempted to qualify, and thereafter respondents contended that he was entitled to a salary of but $1,200 per annum, being the salary fixed in the 1897 charter.
After it was announced in State v. Stuht, 52 Neb. 209, that the term of office of police judge could not be changed from two years to three years, because of the provisions of our constitution, the respondents paid the relator the salary fixed by the old charter to the expiration of his first two years’ term.
Relator continued to perform the duties of the office of such police magistrate during the years 1898 and 1899, the respondents regularly making for his use a warrant of $100 for each month, which, however, he did not accept, and he finally brought mandamus proceedings in the district court for Douglas county to compel payment for the two years at the rate of $2,500 per annum. The case was brought to this court and decided in favor of relator. State v. Moores, 61 Neb. 9. The complete record in that case forms a part of the bill of exceptions in this, and from its examination we think it has become res judicata that the relator was elected and qualified for his first term, and has also been established as the law that during the continuance of that term the relator is entitled to a salary at $2,500 a year. For the regular election held in the city of Omaha in the year 1899, nominations were made for the office of police judge and relator was a nominee. An election was held, resulting in the relator’s receiving a majority of the votes cast. He so far acquiesced in this as to give bond and take the oath of office, and in this instance did take the oath prescribed by the constitution for judi[51] cial officers. An attempt was made to remove him from office but the proceedings were held under a void provision of law, and nothing affecting the rights of either party could be determined therein. See Gordon v. Moores, 61 Neb. 345.
Another action was commenced by relator to compel payment of his salary for the year 1900; and was brought to this court and decided in his favor. Moores v. State, 63 Neb. 345. In the opinion by Oldham, C., it is said:
“In the court below, respondents, by their answer and return, tendered the issue that the relator was the acting-police judge of the city of Omaha for the year 1900, and that he was entitled to a salary at the rate of $1,200 per annum; but in this court counsel for the respondents abandoned that issue.”
The record in that case is also a part of the bill of exceptions, and therein plea is distinctly made by the return to the writ that the relator, was elected in 1899 and qualified, and that he was not holding over at that time but was in for a neAV term under a new election, and that the salary fixed by the charter of 1897 is the salary he was entitled to. In reply to the return, the relator pleaded res judicata by the judgment in State v. Moores, 61 Neb. 9. It will be seen, then, that it has thereby become res judicata, either that the charter of 1897 Avas ineffectual to change the rate of pay of the police judge, or that the relator during the year 1900 was still holding over by virtue of his first election and qualification and his subsequently qualifying as a hold-over officer.
The bill of exceptions in the last named case is made a part of the bill of exceptions in this case, and the evidence therein contained shoAvs that the relator was regularly nominated by the people’s independent and democratic parties as a candidate for police judge of Omaha, to be voted for at the November election, 1899, and that, if such election could then be held, he was elected, and in due time entered into a bond reciting such election and took the oath of office on the 28th day of December, 1899. While the [52] issues of fact in that case were authoritatively settled by the judgment therein, and it was thus established that during the year 1900 the relator was “holding over,” we do not think that it could be thus authoritatively determined that no election for a police judge of the city of Omaha could take place at the proper one of the general elections provided for in the constitution, in the absence of any special legislation providing for the holding of such election.
Thereafter, a similar action for the salary for 1901 was commenced, carried to this court and decided in favor of the relator in the case of Moores v. State, 67 Neb. 535. The record in this action is also a part of the evidence contained in the bill of exceptions, and shows that the relator pleaded previous adjudication by the decision in the case in 61 Neb. 9, and it was correctly decided in favor of the relator because of the previous adjudication pleaded, as no new fact or issue entered into the case except such previous adjudication.
The present action is another one of the same nature brought for the purpose of enforcing payment of a salary, to relator at the rate of $2,500 a year since the expiration of the term which would have commenced in January, 1900, had the election in November, 1899, been lawful, and the relator’s incumbency during 1900 and 1901 been under such election. Another election was attempted at the general election in November,’ 1901, which, if such election was authorized, resulted in the election of Louis Berka to the office in question over the relator, who was also a candidate. Mr. Berka qualified according to law, and has been recognized by the authorities and people of Omaha as the incumbent of the office since January 7, 1902, and if such election was valid he is de jure, as well as de facto, police judge of Omaha, and the judgment of the district court is right; if such election was invalid, then the relator, having been found by previous, adjudication to have been elected and qualified and the de jure incumbent of the office during 1900 and 1901, is still the de jure incumbent of the [53] office under the same hold-over term, and is entitled to the same salary heretofore required to be paid to him.
The only matter, therefore, that requires examination and discussion herein is the validity or invalidity of the election in November, 1901. As we have said, so far as establishing the right of the relator to the old salary during the years 1900 and 1901, the decisions in 63 Neb. 345, followed by the one in 67 Neb. 535, are conclusive, and render res judicata the invalidity of the election in 1899; but the law of the state, and especially that contained in the constitution, can not be foreclosed in such a proceeding to such an extent as to preclude our holding any other election valid which we may find on the law and evidence to be so, and we hold that the validity of the election in 1901 should be herein determined as an original question, arising' for the first time in this action, and that the relator’s plea of res judicata made in this action is not good as to this issue.
By section 18, article VI of the constitution, it is provided that “justices of the peace and police magistrates shall be elected in and for such districts * * * as may be provided by law.” In State v. Stuht, 52 Neb. 209, and State v. Moores, 61 Neb. 9, above referred to, it is held that the police judge of Omaha is such a police magistrate. It follows, then, that the city of Omaha is a district provided by law wherein such magistrate should be elected. If by the changes in the charter the district does not continue to exist, then the office claimed to be held by the relator has been abolished and there is no such police magistrate. Section 20 of the same article of the constitution reads as follows:
“All officers provided for in this article shall hold their offices until their successors shall be qualified and they ¡shall respectively reside in the district, county or precinct for which they shall be elected or appointed. The terms .of office of all such officers, when not otherwise prescribed in this article, shall be two years. All officers, when not otherwise provided for in this article, shall perform ¡such [54] duties and receive such compensation as may be provided by law.”
This section of the constitution is the one. under the provisions of which the relator insists that he is still holding-over as one of the officers therein referred to, and was under consideration in the two cases last above mentioned, and it was held, although in the case of Stale v. Stuht, supra, the question was not directly in issue, that the length of the term of police judge of Omaha could not be changed from the regular two years’ term by the legislature.
Section 13, article XVI, reads as follows:
“The general election of this state, shall be held on the Tuesday succeeding the first Holiday of November of each year, except the first general election which shall be on the second Tuesday in October, 1875. All state, district, county, precinct and township officers, by the constitution ' or laws made elective by the people, except school district officers, and municipal officers in cities, villages and towns, shall be elected at a general election to be held as aforesaid. Judges of the supreme, district, and county courts, all elective county and precinct officers, and all other elective officers, 1he time for the election of whom is not herein otherwise provided for, and which are not included in the above exception, shall be elected at the; first, general election, and thereafter at the general election next preceding the time of the termination of their respective terms of office; Provided, That the office of no county commissioner shall be vacated hereby.”
Section 14 of the same article reads:
“The terms of office of all state and county officers, of judges of the supreme, district and county courts, and regents of the University shall begin on the first Thursday after the first Tuesday in January next succeeding their election, the present state and county officers, members of the legislature, and regents of the University, shall continue in office until their successors shall be elected and qualified.”
[55] It will be noticed that police magi si,rates are to be elected in such districts as are provided by law; that dis trict officers are to be elected at general elections, unless they are within the exceptions mentioned in the above section of the constitution; and that unless the police judge of Omaha is a municipal officer of the city, his election is required to take place at the general election provided for. It was held in State v. Shropshire, 4 Neb. 411, that a justice of the peace elected in a ward of Omaha was required by law to hold his office within the ward which constituted a precinct, and it was held, in effect, that such ward had been created a district Avithin AAdiich a justice of the peace should be elected. While the term “precinct” is used in section 20, article YI, only “districts” are mentioned in section 18. It Avould seem that the. Avord “district,” as used in the constitution in reference to general elections, must refer as Avell to districts created by the legislature as those provided for in the constitution, because it excepts specially “school district officers,” thus mentioning a district that must be created by the legislature, but Avhich Avould be included in the requirement unless so specially excepted.
We are of the opinion that a police magistrate is a district officer, and not a municipal officer of a city within the meaning of the constitution; that the relator having been elected for a term of two years to commence in January, 1896, at the regular election held in 1895, regular elections for police magistrate in the district comprising the city of Omaha should be held every tAvo years thereafter ; that the office and the district still existed in 1901; that the above quoted provisions of the constitution are so far self-enforcing that an election held to fill such office, participated in generally by the people of Omaha, at the general election in 1901, Avas a valid election for that purpose, in the absence of any provision made by the legislature for holding elections for such office in that district; that Louis Lerka Avas elect ed at such election and qualified as required by law, and became, and is, the successor in [56] office to the relator, and was the incumbent of such office during the time for which the relator is herein seeking to compel payment of salary; that relator’s term ended upon the qualification of Louis Berka; and that the judgment of the district court in denying an imperative writ of mandamus to the relator is right and should be affirmed.
To hold that the legislature can provide a district in which a police magistrate can be and is lawfully elected for a term of two years, and that it can then repeal the law providing for the election of a successor and, by so doing, prevent any further elections and still continue the district and office in existence, and thereby indirectly make the incumbent’s term perpetual, when we have held that it can not be directly extended to three years, would be intolerable and destroy the safeguards of the constitution, and we can not so hold.
Our constitution provides by section 22 of the bill of rights:
“All elections shall be free; and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise.”
The electors of the city of Omaha were not disfranchised or deprived of their right to elect a police magistrate in their district at the election provided in the constitution for that purpose, by a failure of the legislature to make any special provision for such an election. Hall v. Commonwealth, 94 Ky. 322.
We recommend that the judgment of the district court be affirmed.
Barnes and Albert, CO., concur.
By the Court:
For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
Affirmed.