Cowan v. State ex rel. Scherck, 2200

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBLUME, Justice.
Citation116 P.2d 854,57 Wyo. 309
PartiesCOWAN, MAYOR v. STATE EX REL. SCHERCK
Decision Date19 September 1941
Docket Number2200

116 P.2d 854

57 Wyo. 309

COWAN, MAYOR
v.
STATE EX REL. SCHERCK

No. 2200

Supreme Court of Wyoming

September 19, 1941


ERROR to the District Court, Natrona County; P. W. METZ, Judge.

Action in mandamus by the State of Wyoming on the relation of Frank G. Scherck against Frank Cowan as Mayor of the City of Casper, Natrona County, Wyoming, to compel the mayor to reinstate the relator in the office of Chief of Police (marshal) of the City of Casper and for general relief. To review an adverse judgment, the defendant brings error.

Reversed and Remanded.

For the plaintiff in error, there was a brief and an oral argument by W. J. Wehrli of Casper.

Relator was removed from the office of Marshal or Chief of Police of Casper by respondent, as Mayor of said City. The legality of his removal is challenged and his suit is to recover salary after his removal. The cause was tried upon admissions contained in the pleadings and a stipulation of facts, the essence of which is that no written charges were made against relator by respondent, and no written notice was given of hearing upon such charges, and no hearing was had upon written charges after the giving of written notice. The trial court rendered a judgment in favor of relator, holding the order of his removal to be void and awarding relator his costs. A peremptory writ of mandamus was not granted. The alternative writ was not discharged. Damages were not awarded. Respondent brings error proceedings, alleging error in overruling his motion for a new trial; in sustaining relator's demurrer to respondent's answer, denying respondent's motion for a judgment on the pleadings, and his offer at the trial to prove the allegations of his answer, and generally in rendering the so-called "Judgment." The court was without jurisdiction to try title to public office in a mandamus suit. 38 C. J. 704, Sec. 290; State v. Barber, 4 Wyo. 409; Hamilton v. Grant, 14 Wyo. 41; State v. Kansas City, 7 S.W.2d 357. Relator was lawfully removed from office. Hamilton v. Grant, supra; Sec. 22-328, R. S. Respondent's answer alleged facts setting forth circumstances that brought the case within the law. Sec. 22-314, R. S. 1931; 43 C. J. 780; 43 C. J. 665, Sec. 1101. When the officer appears and answers, notice is dispensed with. State v. New Orleans (La.) 32 So. 22; 1 Dillon on Municipal Corporations 254; People v. French (N. Y.) 7 N.E. 913; State v. Sanchez (N. M.) 255 P. 1077. The statute (Sec. 22-314, R. S.) does not require notice of hearing. Conklin v. Cunningham, 38 P. 170; People v. Morton (N. Y.) 42 N.E. 538; In re Carter (Calif.) 74 P. 997; Darnell v. Mills (Wash.) 135 P. 475; Bynum v. Strain (Okla.) 218 P. 883. We direct the court's attention to statutory provisions covering mayors and the office of chief of police. Sec. 22-320; § 22-327; § 22-387, R. S.; Ordinance No. 477-A of Casper. In the trial of the case in August, 1938, it appeared from the face of relator's petition that the cause had become moot. 51 C. J. 331; Potts v. Tuttle (Ia.) 44 N.W. 374; McWhorter v. Northcut (Tex.) 57 S.W. 904; Hurd v. Beck (Kans.) 45 P. 92; Riggins v. Richards (Tex.) 80 S.W. 524; Sanford v. Markham (Okla.) 221 P. 36. A peremptory writ of mandamus will not issue where it cannot be effective. 38 C. J. 661, 691, 592 and 926. Gay v. Torrance, 78 P. 540; 1 C. J. 973, 975 and 985. No judgment in mandamus could be rendered in this cause. Sec. 89-4513, R. S.; 38 C. J. 924. No relief was granted, and the action should have been dismissed at relator's cost.

For the defendant in error, there was a brief by E. E. Enterline and M. L. Bishop, Jr. of Casper, and oral argument by Mr. Bishop.

Counsel for respondent misinterpreted the issues of the cause determined by the trial court. The following statutory and constitutional provisions are applicable and should be considered in the review and disposition of the cause: Sec. 22-314, § 22-313, § 22-317, Article 1, Sec. 7 of the Wyoming Constitution. We feel that the authorities cited in the brief of plaintiff in error are not in point upon the facts. Even though salary is paid to a defacto officer, a de jure officer can recover from the municipality. Rasmussen v. Board of County Commissioners, 8 Wyo. 277; Blydenburgh v. Commissioners, 8 Wyo. 303. Clark was not a necessary party. Mandamus is a proper remedy to restore a person to an office from which he has been illegally removed. 18 R. C. L. 254; 38 C. J. 712, 713; State v. Mayor (N. J.) 8 L. R. A. 697; State v. Rose (Ohio) 112 N.E. 1034; Karb v. Carter (Ohio) 100 N.E. 345; Metsker v. Neally (Kan.) 21 P. 206; State v. Council, 9 Wis. 254; Comm. v. Gibbons (Pa.) 46 A. 313; State v. Mayor, 35 N. J. L. 190; State v. Baldwin (Ohio) 83 N.E. 907; Nelson v. Baker (Ore.) 227 P. 301; Pratt v. Board of Commissioners (Utah) 49 P. 747; Lobban v. State, 9 Wyo. 377. An officer appointed for a fixed term cannot be removed, except for cause, and then upon notice and hearing. Article III, Sec. 19; Article IV, Sec. 7 Wyoming Constitution; § 30-138, 139; 39-201, R. S.; State v. Loucks, 30 Wyo. 485. Relator had property rights in the emoluments of the office from which he was removed. Rasmussen v. Board of Commissioners, supra; State v. Sullivan (Mont.) 40 P.2d 296. The contention of plaintiff in error that the case is moot is not well taken. The question raised in the petition of relator was in force and effect at that time. Relator did not cause delay in the proceeding. There were no laches chargeable to relator. Barney v. Montgomery, 29 Wyo. 362; Willis v. Coal Co. (Ore.) 96 P. 528; Nelson v. Baker, supra. The relator acted promptly in presenting a claim for his salary on July 6, 1937, and in bringing his action on July 24, 1937. State v. Kalina (Ohio) 187 N.E. 645. The judgment of the trial court should be affirmed.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION [116 P.2d 855]

[57 Wyo. 314] BLUME, Justice.

This is an action in mandamus brought by the relator for the purpose of compelling the defendant, mayor of the City of Casper, Wyoming, to reinstate him in the office of chief of police (marshall) of that city, and for general relief. It appears that relator was appointed to that office in January, 1936, to serve to the end of 1937. He was dismissed from office for incompetency and neglect of duties about May 27 or May 29, 1937. This action was commenced on July 24, 1937. After the filing of several pleadings by the defendant, and the action of the court thereon, the defendant filed a second amended answer on August 17, 1938. A demurrer was filed thereto on the ground that it fails to state a defense. The demurrer was sustained and the defendant electing to stand upon his answer, judgment was entered on April 19, 1940, merely to the effect that "the relator was wrongfully and unlawfully removed from office as marshall or chief of police of the city of Casper, and that the order and notice of such removal were void and of no force or effect." From that judgment the defendant has brought proceedings in error.

1. It is alleged in the second amended answer of the defendant that on June 1st, 1937, three days after formal notice of dismissal was given to the relator, one Will Clark was appointed as chief of police of the city of Casper; that the appointment was confirmed by the city council of Casper; that he duly qualified and ever since that time has been chief of police of Casper and has been paid the salary of the office. It is contended by the defendant that mandamus is not the proper remedy for reinstatement to an office, if another occupies it; that since the occupancy of the office in question by another duly appears by the second amended [57 Wyo. 315] petition, the demurrer thereto should have been overruled for that reason.

The authorities do not seem to be in harmony. Dillon, Municipal Corporations (5th ed.) Sec. 487, states that if the "person wrongfully removed is a public officer * * * and if the office has been filled by the appointment of another person, the actual incumbent of the office is entitled to be heard, and under the rule that title to office cannot be determined by mandamus, the remedy of the person alleged to have been wrongfully removed is by quo warranto and not by mandamus." High on Extraordinary Legal Remedies (3rd ed.) Sec. 49, states that the "rule may now be regarded as established by an overwhelming current of authority that when an office is already filled by an actual incumbent, exercising the function of the office de facto and under color of right, mandamus will not lie to compel the admission of another claimant, or to determine the disputed question of title." So Mechem on Public Officers, Sec. 346, states that "where an office is already filled by an officer de facto who is discharging its duties, mandamus will not lie to compel the admission of one claiming to be the officer de jure, but resort must be had to quo warranto." A late case on the subject, which cites many other cases, and holds the foregoing rule, is State ex rel. v. Kansas City, (Mo.) 7 S.W.2d 357, 59 A. L. R. 95. In 35 Am. Jur. 15, where reference to the foregoing rule is made, it is stated that "the rule is not, however, uniformly adhered to. Some courts regard mandamus as a proper remedy to reinstate one illegally removed from office, even though the functions of the office are being exercised by another person elected or appointed thereto." In note 84 A. L. R. 1136, about fourteen jurisdictions are cited as holding that mandamus is the proper remedy to restore one to office from which he has been illegally removed. It appears from a note in 55 A. L. R. 998 that, according to the [57 Wyo. 316] majority opinion, the salary pertaining to a public office cannot be paid twice, and that the only remedy of a de jure officer, when his right to the office has been established, is against the defacto officer. We can readily see that where that rule prevails, good reason exists...

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6 practice notes
  • Clark v. O'Malley, No. 768, September Term, 2008.
    • United States
    • Court of Special Appeals of Maryland
    • June 10, 2009
    ...236 N.W. 358 (1931)); 55 C.J.S. Mandamus § 232 (citing Ruch v. Wilhelm, 352 Pa. 586, 43 A.2d 894 (1945); Cowan v. State ex rel. Scherck, 57 Wyo. 309, 116 P.2d 854 (1941)). Were he reinstated, Kevin Clark's term as Police Commissioner would terminate on June 30, 2008. A fourth reason given b......
  • State ex rel. Godby v. Hager, No. 12993
    • United States
    • Supreme Court of West Virginia
    • November 17, 1970
    ...347, 91 A. 872; Tanner v. Edwards, 31 Utah 80, 86 P. 765, 120 Am.St.Rep. 919, 10 Ann.Cas. Page 559 1091; Cowan v. State ex rel. Scherck, 57 Wyo. 309, 116 P.2d 854, 136 A.L.R. 1330. See also, Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49; Holley v. McDonald, 154 Conn. 228, 224 A.2d 727; McDer......
  • Kennedy v. State, Nos. 4454
    • United States
    • United States State Supreme Court of Wyoming
    • January 27, 1977
    ...upon the legislative function, Town of Clearmont v. State Highway Commission, Wyo., 357 P.2d 470, 476; Cowan v. State ex rel. Scherck, 57 Wyo. 309, 116 P.2d 854, 859, 136 A.L.R. 1330. When the constitutionality of a statute is in question 'the plain, ordinary, and usual meaning of words use......
  • State ex rel. Pearson v. Hansen, No. 3418
    • United States
    • United States State Supreme Court of Wyoming
    • May 12, 1965
    ...by way of a coercive writ of mandamus against the Governor. To sustain his position reliance is placed on Cowan v. State ex rel. Scherck, 57 Wyo. 309, 116 P.2d 854, 856, 136 A.L.R. 1330. State ex rel. Hamilton v. Grant, supra, might also have been cited. While it is true that both were acti......
  • Request a trial to view additional results
6 cases
  • Clark v. O'Malley, No. 768, September Term, 2008.
    • United States
    • Court of Special Appeals of Maryland
    • June 10, 2009
    ...236 N.W. 358 (1931)); 55 C.J.S. Mandamus § 232 (citing Ruch v. Wilhelm, 352 Pa. 586, 43 A.2d 894 (1945); Cowan v. State ex rel. Scherck, 57 Wyo. 309, 116 P.2d 854 (1941)). Were he reinstated, Kevin Clark's term as Police Commissioner would terminate on June 30, 2008. A fourth reason given b......
  • State ex rel. Godby v. Hager, No. 12993
    • United States
    • Supreme Court of West Virginia
    • November 17, 1970
    ...347, 91 A. 872; Tanner v. Edwards, 31 Utah 80, 86 P. 765, 120 Am.St.Rep. 919, 10 Ann.Cas. Page 559 1091; Cowan v. State ex rel. Scherck, 57 Wyo. 309, 116 P.2d 854, 136 A.L.R. 1330. See also, Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49; Holley v. McDonald, 154 Conn. 228, 224 A.2d 727; McDer......
  • Kennedy v. State, Nos. 4454
    • United States
    • United States State Supreme Court of Wyoming
    • January 27, 1977
    ...upon the legislative function, Town of Clearmont v. State Highway Commission, Wyo., 357 P.2d 470, 476; Cowan v. State ex rel. Scherck, 57 Wyo. 309, 116 P.2d 854, 859, 136 A.L.R. 1330. When the constitutionality of a statute is in question 'the plain, ordinary, and usual meaning of words use......
  • State ex rel. Pearson v. Hansen, No. 3418
    • United States
    • United States State Supreme Court of Wyoming
    • May 12, 1965
    ...by way of a coercive writ of mandamus against the Governor. To sustain his position reliance is placed on Cowan v. State ex rel. Scherck, 57 Wyo. 309, 116 P.2d 854, 856, 136 A.L.R. 1330. State ex rel. Hamilton v. Grant, supra, might also have been cited. While it is true that both were acti......
  • Request a trial to view additional results

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