Burkett v. Ulmer

• Decision Date: 21 October 1940
• Citation: 15 A.2d 858
• Parties: BURKETT, Atty. Gen., ex rel. LEACH v. ULMER.
• Court: Maine Supreme Court

15 A.2d 858

BURKETT, Atty. Gen., ex rel. LEACH

v. ULMER.

Supreme Judicial Court of Maine.

Oct. 21, 1940.

Exceptions from Superior Court, Penobscot County; Edward P. Murray, Judge.

Quo warranto proceeding by Franz U. Burkett, Attorney General, on the relation of Herbert W. Leach, against Walter F. Ulmer, to determine the nomination in the primary election of June 17, 1940, of the candidate of the Republican Party for the office of County Commissioner for the County of Penobscot. The superior court dismissed the petition and denied the writ of quo warranto, and the relator brings exceptions.

Exceptions overruled.

Argued before STURGIS, C. J., and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

Ross St. Germain and Arthur L. Thayer, both of Bangor, for relator.

Harold Towle, of Bangor, for respondents.

STURGIS, Chief Justice.

This is a proceeding begun by a petition for a writ of quo warranto brought by the attorney general of Maine on the relation of Herbert W. Leach of Charleston to determine the nomination in the Primary Election of June 17, 1940, of the candidate of the Republican Party for the office of County Commissioner for the County of Penobscot. Notice having been duly ordered, at the hearing before the Superior Court in vacation, the Justice presiding dismissed the petition and denied the writ. Exceptions to this ruling were reserved.

The relator, Herbert W. Leach, and the respondent, Walter F. Ulmer, and nine other persons, were candidates for this nomination, and when the Governor and Council had counted and tabulated the votes cast and returned and had found that Walter F. Ulmer had received 2,051 votes, Herbert W. Leach, 2,040 votes, and each of the other candidates a smaller number, they declared that Walter F. Ulmer had been nominated. The complaint here made is that the Governor and Council counted and tabulated sixteen defective and illegal ballots for Walter F. Ulmer which should have been rejected, leaving the total legal votes cast for him only 2035 in number, which was less than the 2,040 votes received by Herbert W. Leach and did not make him the nominee of his Party for the office of County Commissioner.

In this jurisdiction, although proceedings in quo warranto have usually been begun by filing an information, as the reported cases show, the ancient practice of making application for a writ of quo warranto by petition is recognized and, by implication, authorized. R.S.Chap. 116, Sec. 21. This statutory provision has made no change in quo warranto as known to the common law. Ex parte Davis, 41 Me. 38, 57. The writ of quo warranto or an information in the nature thereof issues in behalf of the State against one who claims or usurps a public office to which he is not entitled, to inquire by what authority he supports his claim or sustains his right. The proceeding is instituted by the attorney general on his own motion or at the relation of any person, but on his official responsibility. Prince v. Skillin, 71 Me. 361, 36 Am.Rep. 325. At common law, private individuals without the intervention of the attorney general could not, either as of right or by leave of court, institute quo warranto proceedings. Rice v. National Bank of the Commonwealth, 126 Mass. 300. This rule has been modified in this State only to the extent that when in quo warranto proceedings the title to office in a private corporation is involved the attorney general need not be a party thereto. R.S.Chap. 116, Sec. 22.

At common law, quo warranto proceedings to try the title to an office are confined to public offices. State v. North, 42 Conn. 79; Com. v. Dearborn, 15 Mass. 125; Haupt v. Rogers, 170 Mass. 71, 48 N.E. 1080; Mechem on Public Officers, Sec. 479; High's Extraordinary Legal Remedies, Sec. 625; 51 C.J. 317 and cases cited. Unless authorized by statute, the State does not inquire by quo warranto into the title to a private office, and the attorney general in its behalf can intervene in matters of this nature only so far as they relate to public offices. Attorney General v. Drohan, 169 Mass. 534, 48 N. E. 279, 61 Am.St.Rep. 301.

In the early Opinion of the Justices, 3 Me. 481, in reference to public office, it was said: "We apprehend that the term 'office' implies a delegation of a portion of the sovereign power to, and the possession of it by the person filling the office; and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office." In 22 Ruling Case Law, 374; we read: "One of the most important criteria of a public office is that the incumbent is invested with some of the functions...