THE PEOPLE v. MCCALLUM. The People v. McCallum. 1. CONSTITUTION: Title of bills. Section 19 of article 2 of the constitution, does not require that the title of a bill shall contain an abstract of the bill, nor set out the particulars of the amendment. The Legislature may select its own title, although it may not be the most suitable or comprehensive. 2. 8. -: Recital of the provision amended. An act amendatory of a former statute need not recite the provision changed. · Mistake in such recital. If the former provision which is amended, be recited in the new enactment, and a mistake in such recital be made, it does not render the new act void as in contravention of this clause of the constitution. 4. BONDS OF COUNTY CLERKS: Assuming duties of clerks of District Courts. The statute making county clerks, ex officio clerks of the District Court in their respective counties, does not require of them bonds in their character of court clerks, separate or additional to such as they give as county clerks. 5. QUO WARRANTO: Demand. If such additional bond were required, a county clerk would not be excluded from performance of his duties as clerk of the court, because he had neglected to give the additional bond, unless demand that he do so were first made upon him in that behalf. 6. -: Answer. An allegation in an answer to an information in the nature of a quo warranto, that the defendant had given a bond "for the faithful performance of all the duties required by law of him in consequence of his said election to the office" in question, is a sufficient allegation that he has given the bond required by law. 7. : Pleading. A pleading which is ambiguous is not for that reason liable to demurrer. The proper remedy is motion to make it more certain. This was an information filed in the District Court of Otoe county, to try the right of the defendant to exercise the duties of clerk of the said court. The information was as follows: "And now comes O. B. Hewett, prosecuting attorney for the First Judicial District of the State of Nebraska, comprising the county of Otoe, and at the relation of Guy THE PEOPLE v. MCCALLum. A. Brown, exhibited to this honorable court an information in the nature of a quo warranto, and states that one George R. McCallum, the defendant, has usurped, invaded, and intruded into, and unlawfully holds and exercises the office of clerk of the District Court in and for the county of Otoe and State of Nebraska, and that the said George R. McCallum, the defendant, has no right or authority to hold said office. And your petitioner further states, that the said George R. McCallum is the county clerk of said county of Otoe, and by virtue thereof claims that he is ex officio clerk of the District Court of said county, and entitled to the custody and control of the books, papers, records and seal belonging and appertaining to said District Court, and to exercise all the functions and to perform and execute all the duties devolving upon the clerk of said District Court. But your petitioner states that the said George R. McCallum, as such county clerk, is not ex officio clerk of said District Court, and is not entitled to the care, custody and control of the books, papers, records and seal thereof, and is not entitled to exercise the functions, and to perform and exercise the duties of clerk of said District Court, and that the acts of the said George R. McCallum in usurping, invading, holding, exercising and taking possession of the office of clerk of the District Court of said county, and of the books, papers, records and seal thereof, and in exercising the functions, and in performing and exercising the duties of clerk of said District Court, is contrary to and in violation of the constitution and laws of the State of Nebraska. And your petitioner further states that the said George R. McCallum, although he now holds possession of the office of clerk of said District Court, and exercises the functions, and performs and exercises the duties of said. office, yet he, the said George R. McCallum, has failed and THE PEOPLE v. MCCALLUM. neglected to give bond as clerk of said District Court, as required by law. And your petitioner further states, that on the tenth day of November, A. D. 1869, the said Guy A. Brown was duly appointed the clerk of the said District Court by the Hon. O. P. MASON, Chief Justice of the State of Nebraska, and Judge of the First Judicial District, comprising the county of Otoe, and that therefore the said Guy A. Brown afterwards, to wit, on the twelfth day of November, A. D. 1869, entered into a bond to the People of the State of Nebraska, in the sum of three thousand dollars, with good and sufficient security, conditioned for the faithful performance of the duties of said office, which said bond was on the day and year last aforesaid, duly approved by the Honorable O. P. MASON, Chief Justice and District Judge as aforesaid, and has duly qualified as such clerk; and that therefore the said Guy A. Brown became, and was and now is, entitled to the care, custody and control, of all the books, papers, records and seal of said District Court, and to exercise the functions, and to perform and execute all the duties of clerk of said District Court. And your petitioner states that afterward, to wit: on the twelfth day of November, A. D. 1869, the said Guy A. Brown, at Nebraska City, in the said county of Otoe, demanded of the said George R. McCallum, the possession, custody and control of all the books, papers, records and seal belonging and pertaining to said District Court, and to allow and to permit him, the said Guy A. Brown, to exercise the functions, and to perform and execute all the duties of clerk of said District Court, all of which the said George R. McCallum refused to do, and still holds possession of said office, and all the books. papers. records and seal thereof. and still claims to be such district clerk, and to exercise all the functions, powers THE PEOPLE v. MCCALLUM. and duties incident thereto, and to the prejudice and against the lawful rights of said Guy A. Brown. Wherefore, your petitioner prays for a judgment of ouster against the said George R. McCallum, and that he be altogether excluded from the office of clerk of said District Court, and for such other and for further judgments and orders as to this court shall seem proper to prevent said defendant from usurping, intruding or invading into, or unlawfully holding, or exercising, or executing said office." To this information there was filed an answer as follows: "And now comes the said George R. McCallum, defendant as aforesaid, and denies that the said defendant usurps, invades or intrudes into, or unlawfully holds or exercises the office of clerk of the District Court in and for the county of Otoe aforesaid. But, on the contrary thereof, this defendant alleges that by virtue of his office he, this defendant, has good right and lawful authority to have, hold and exercise the office of clerk of said District Court, and that no other person whatsoever has any right or title to said office. And said defendant further alleges and says, that on the second Tuesday in October, A. D. 1867, he, this defendant, was duly elected county clerk by the qualified voters of Otoe county aforesaid, and gave bond, and in all respects qualified himself for holding said office and for the discharge of the duties thereof. And being county clerk as aforesaid, this defendant on the fourth day of July, 1869, by the law of the land, became ex-officio clerk of the District Court in and for the county of Otoe aforesaid, and bound to perform all and singular the duties of the clerk of said District Court, and entitled to receive all and singular the emoluments of said office. And said defendant, George R. McCallum, being by operation of law, ex-officio clerk of said District Court, the said Guy A. Brown made application to this THE PEOPLE v. MCCALLUM. defendant to become, and did become, by appointment of this defendant, deputy clerk of said District Court under this defendant, and on the 24th day of July, A. D., 1869, gave bond in the penal sum of five thousand dollars, with good and sufficient security, conditioned for the faithful performance of his duties as deputy of this defendant. And afterwards, to wit: On the twenty-seventh of July, 1869, the said Guy A. Brown made solemn oath that he would faithfully and impartially perform the duties of deputy district clerk in and for said county of Otoe, and had the same endorsed on said bond, as by reference thereto will more fully and at large appear. Wherefore, said Guy A. Brown ought not to be permitted or allowed in a court of law to dispute the title of this defendant to be clerk of said District Court, but ought to be estopped from so doing. And this defendant, George R. McCallum, further alleges and says, that on the second Tuesday in October, 1869, the said George R. McCallum, by the qualified voters of said Otoe county, was duly elected county clerk of said county; and within the time prescribed by law, the said George R. McCallum took the oath prescribed by law, and gave bond in the penal sum of six thousand dollars, with Jacob Blum, James Smith, and W. H. H. Waters, as his sureties, the date of which is the eighteenth day of October, 1869; which said bond was conditioned for the faithful performance of all the duties required by law of said George R. McCallum, in consequence of his said election and the same, and the sureties therein were approved by the Probate Judge of said Otoe county, and lodged in his office, as by reference thereto will more fully and at large appear. And by virtue of said election, the said George R. McCallum became, and was and is, ex officio clerk of the District Court, in and for said Otoe county, in said infor mation mentioned, and is fully entitled to the care, custody |