People ex rel. Finnegan v. Mayworm

• Decision Date: 28 May 1858
• Citation: 5 Mich. 146
• Court: Michigan Supreme Court
• Parties: The People on the relation of Michael Finnegan v. Francis Mayworm

5 Mich. 146

The People on the relation of Michael Finnegan v. Francis Mayworm

Supreme Court of Michigan

May 28, 1858

Heard May 18, 1858

Information in the nature of a quo warranto.

Judgment rendered against the defendant, Francis Mayworm, and Michael Finnegan, the relator entitled to the office of sheriff of Houghton county.

Wm Gray, for relator.

D., S A. & D. Goodwin, for respondent.

OPINION

Campbell J.:

An information, in the nature of a quo warranto, having been filed against the defendant, to inquire bye what authority he assumes to exercise the office of sheriff of the county of Houghton, and suggesting that Michael Finnegan is entitled to the office, an informal plea was put in, claiming the office, and denying any usurpation; and the facts are agreed upon.

On the 30th day of September, 1856, an election was held pursuant to statute, in Houghton county, for the election, among other officers, of a sheriff for said county, for the term commencing January 1st, 1857. For said office, the following votes were cast, by duly qualified electors, viz: For John Burns, 369 votes; for Michael Finegan, 271 votes; for Michael Finnegan, 175 votes; for Michael Finnigan, 1 vote; which were all the votes cast. The board of canvassers declared Burns duly elected. No formal official notice of the result of the election and the decision of the board was given to Finnegan, but he had knowledge thereof immediately after the decision being made. He never took or filed the oath of office required by law, nor did he ever given and deposit the bond required by law.

Burns never qualified under the election, and the decision and certificate of the board of canvassers, by taking and depositing the oath of office and giving and depositing a bond, as required by law. He was the incumbent of the office for and during the year 1856. But immediately preceding, or upon the 25th day of December of that year, he resigned the office, and there then being no under-sheriff, or other person authorized to perform the duties of the office, the county clerk and prosecuting attorney, on said day, appointed the defendant, Mayworm, to perform the same; who, having duly taken, subscribed, and deposited the official oath, and given and deposited the official bond required by law, entered upon the performance of the duties of the said office, and ever since has continued to perform the same.

The inquiry in this case contains two divisions, which are not necessarily connected.

We have, first, to inquire whether Francis Mayworm has made out his title to the office. If it should turn out that he has failed in this, the question will still remain, whether Finnegan has any rights in the premises.

It appears that Mayworm was appointed on the 25th day of December, 1856, to act, for the time being, in the vacancy created by the resignation of John Burns, whose original term had then but six or seven days to run. This appointment appears to have been regular. But it is not enough that an officer appointed for a temporary purpose, should show a legal appointment. The usurpation charged is a continuing usurpation, alleged to exist in the month of June, 1857, several months after the commencement of a new statutory term. The rule is well settled, that where the state calls upon an individual to show his title to an office, he must show the continued existence of every qualification necessary to the enjoyment of the office. The state is bound to make no showing, and the defendant must make out an undoubted case. It is not sufficient to state the qualifications necessary to the appointment, and rely on the presumption of their continuance. The law makes no such presumption in his favor: State v. Beecher, 15 Ohio 723; People v. Phillips, 1 Denio 388; State v. Harris, 3 Pike 570; State v. Ashley, 1 Pike 513.

The case of The People v. Phillips was one where the defendant, as here, claimed to hold over for want of a legal successor; and, instead of showing that no person had, during the whole period, been chosen in his stead, merely showed one abortive election. The court held he was bound to show that no one had, at any time, been chosen to succeed him and, in the absence of this, he was ousted. Mayworm has shown here that Burns did not qualify, and that Finnegan also did not. Conceding, for the present, that this was enough to cut them both off, the case is still defective in not showing affirmatively that the vacancy had not since been filled, either by...