Beard v. Beard

• Decision Date: 23 September 1913
• Parties: BEARD v. BEARD.
• Court: Oregon Supreme Court

134 P. 1196

66 Or. 512

BEARD v. BEARD.

Supreme Court of Oregon

September 23, 1913

Appeal from Circuit Court, Multnomah County; J.P. Kavanaugh, Judge.

On petition for rehearing. Former decision affirmed.

For former opinion, see 133 P. 797.

R.A. Leiter, of Portland (Griffith, Leiter & Allen and F.J. Lonergan, all of Portland, on the brief), for appellant.

Wallace McCamant, of Portland (Snow & McCamant, of Portland, on the brief), for respondent.

McNARY, J.

A petition for rehearing has been filed in this case by counsel for defendant on the ground that, if the title to an office is directly and unavoidably in controversy, the court will not grant relief by action of mandamus; and in advocacy thereof, counsel cite the case of State v. Williams, 25 Minn. 340. In that case, the contest was over a political office. The county treasurer of one of the counties of the state had been, during the term of his office as county treasurer, elected to and had accepted the office of representative in the state assembly. The board of commissioners, believing the state Constitution inhibited the treasurer from serving in the dual capacity of county treasurer and representative, appointed another to the office of county treasurer. Possession of the office being withheld by the treasurer, the appointee of the county commissioners sought to compel delivery by mandamus.

In the legal controversy which ensued, the treasurer contended the only question for the court to consider was the title of the office of county treasurer, and that the correct proceeding would be one in the nature of quo warranto, and that mandamus could not be maintained. The court with fitness said "We think this is so. Unless his election to, his acceptance and entry upon, the duties of the office of representative, operated to deprive Williams of the office of treasurer, the relator's appointment is an absolute nullity. The question whether the relator has any right to the office depends altogether upon whether Williams has any title to the same. That question lies at the threshold of the controversy. The relator cannot move a step until he has first made it appear that Williams' title is at an end. Until he has done this, his certificate of appointment is prima facie evidence of nothing. And right here lies the distinction between the case at bar and the class of cases represented by Crowell v. Lambert, 10 Minn. 369 (Gil. 295), and Atherton v. Sherwood, 15 Minn. 221 (Gil. 172), 2 Am.Rep. 116. In that class of cases--in which the question is, who is prima facie entitled to the possession of the records and other property of a given office--the certificate of the auditor, which is conclusive until it is affirmatively overthrown, is properly held prima facie evidence that the person named in it has been elected, and is therefore, if he has duly qualified entitled to the possession of the records and other property of the office. In that class of cases, the title to the office is not finally adjudicated; but the question of prima facie right is properly regarded as settled by the auditor's certificate. But the case at bar is another thing entirely, because the question of title must be examined and determined against Williams, the incumbent de facto of the office, before the relator's certificate of appointment can possess any value whatever. The case, then is one in which the title of the office is directly and unavoidably in controversy, although the action is in form an action, not for the determination of the title, but for the recovery of possession of the records and other...