Burke v. Comm'rs Of Bessemer City

• Decision Date: 25 May 1908
• Citation: 61 S.E. 609,148 N.C. 46
• Court: North Carolina Supreme Court
• Parties: BURKE, Treasurer. v. COMMISSIONERS OF BESSEMER CITY.

148 N.C. 46

61 S.E. 609

BURKE, Treasurer.

v.COMMISSIONERS OF BESSEMER CITY.

Supreme Court of North Carolina.

May 25, 1908.

1. Mandamus—Title to Office.

Title to office cannot be determined on mandamus.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Mandamus, §§ 161-169.]

2. Same—Compelling Acceptance and Approval of Official Bonds.

Unless the title to the office of town treasurer is uncontested or has been adjudged on quo warranto, mandamus cannot issue as to the bond, and then it can only require action thereon.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Mandamus, §§ 161-169.]

3. Same.

Since a judgment for plaintiff in quo warranto, praying for the recovery of the office of treasurer of a town, compels his admission to office, mandamus will lie to compel the consideration of the official bond then tendered by him, but not its acceptance.

Appeal from Superior Court, Gaston County; Ferguson, Judge.

Mandamus by J. L. Burke against the commissioners of Bessemer City to reinstate relator in the office of treasurer and to approve his bond. From a judgment directing defendant to accept and approve the bond tendered by relator, defendant appeals. Reversed.

C. E. Whitney and S. J. Durham, for appellant.

Burwell & Cansler and A. G. Mangum, for appellee.

CLARK, C. J. This is a mandamus to compel the town commissioners of Bessemer to reinstate the relator in the office of town treasurer, from which he had been removed by them, and to approve the bond tendered by the relator. The court, without passing upon the prayer to compel reinstatement, ordered the defendants, to "accept and approve" the bond tendered.

The facts of this controversy are set out in the quo warranto proceeding—Burke v. Jenkins, 61 S. E. 608, which are hereby referred to and made a part of this case—in which it was adjudged that the relator is not entitled to recover said office. This proceeding, therefore, has no longer any purpose. It is proper to observe, however: (1) That title to office cannot be determined upon a mandamus. Ellison v. Raleigh, 89 N. C. 125; Brown v. Turner, 70 N. C. 93; State v. Tate, 66 N. C. 231. (2) That unless the title to the office is uncontested, or has been adjudged on a quo warranto, a mandamus cannot issue as to the bond, and even then it cannot require the defendants to "accept and approve" the bond. It can only require them to act, not compel their judgment, because they are individually liable if they take a bond known or which should be known by them to be insufficient. Buckman v. Commissioners, 80 N. C. 121; Harrington v. King, 117 N. C. 117, 23 S. E. 92; Barnes v. Com'rs, 135 N. C....