Driscoll v. Jones
| Decision Date | 01 March 1890 |
| Citation | 44 N.W. 726,1 S.D. 8 |
| Parties | Driscoll v. Jones. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. The office of clerk of the district court was abolished by the constitution, upon the admission of South Dakota as a state.
2. The office of clerk of the circuit court is a new office, created by the constitution.
3. The incumbent of the old office of clerk of the district court at the time of the admission of the state, did not become the clerk of the circuit court, by virtue of section 4, art. 26 of the constitution, for that section only provided that certain officers should continue to hold and exercise their respective offices until superseded under the constitution and, the office of clerk of the district court being abolished, its former incumbent could not continue to hold and exercise it.
Appeal from circuit court, Lawrence county; JOHN W. NOWLIN, Judge.
Martin & Mason and William E. Church, for appellant William R Steele, for respondent.
The respondent in this action was appointed clerk of the district court in and for Lawrence county, in the territory of Dakota, on the 7th day of January, 1887, by Hon. CHARLES M. THOMAS, then judge of said district, and was holding said office under such appointment at the time of the admission of the state of South Dakota, and still retains possession of the seal and other property of such office. On the 12th day of November, 1889, the appellant was appointed to said office by the board of county commissioners of said Lawrence county, and on the 22d day of the same month duly qualified, as required by law. No question is made as to the regularity of his appointment, or qualification under it, if the board had authority to make such appointment. On the 25th day of November, 1889, and prior to the commencement of these proceedings, appellant notified respondent of his said appointment as clerk of the circuit court for said Lawrence county, and of his qualification, and demanded of him the possession of the seal, records, books, furniture, and other property and appurtenances of said office,--all of which was refused by said respondent. On the 27th day of November, 1889, the Honorable CHARLES M. THOMAS, judge of the said circuit court for Lawrence county, on petition of appellant, issued an alternative writ of mandamus, the mandate of which was as follows: "Now, therefore, we, being willing that ful and speedy justice should be done in the premises, do command you that immediately upon the receipt of this writ you do deliver up and surrender to the said Robert H. Driscoll the possession and custody of the seal of the circuit court in and for the county of Lawrence, and all and singular the books, papers, and records of said court, or pertaining to the office of clerk of said court, in your possession, or under your control, including all books, papers, and records of the late district court of the county of Lawrence and territory of Dakota, and of the clerk thereof, and also the keys and furniture of the rooms or offices provided by the county for the use of said clerk, and the keeping of said records, or that you show cause," etc. By request and consent of parties and counsel, the matter was heard before Hon. JOHN W. NOWLIN, judge of the seventh judicial circuit, at Deadwood, in said Lawrence county, January 23, 1890, when the court dismissed said alternative writ; and from such judgment appellant appeals to this court.
Respondent contends that this is essentially a proceeding to try title to an office, and that mandamus cannot be used for such purpose. In theory, the line of demarcation separating the provinces of mandamus and quo warranto, and consequently the law governing each, respectively, is very well defined; but the practical difficulty often is to determine, from the features and characteristics of any particular case, to which province it belongs, and consequently to which law it is a rightful subject. The law undoubtedly is, as stated by the learned counsel for the respondent, that title to office is not properly determinable in mandamus proceedings. If this proceeding involves primarily the title to this office, and a decision of this application formandamus requires the investigation and determination of such a controversy, then, certainly, mandamus is not the proper remedy; and this must be the first question to be settled. The appellant invokes the aid of the law by mandamus for the accomplishment of a specific object, to-wit, the possession of the seal, records, and other property incident to the office of clerk of the circuit court, and the mandate of the alternative writ simply responds to that appeal. Upon a trial in mandamus, the plaintiff presents his credentials, and the court then says, as a matter of law, these credentials do or do not entitle the holder to the possession of the property demanded. The court does not go behind the credentials to examine any antecedent questions of fact which might affect their force or credit. It takes the credentials at their face value, and if they come from the proper authority, and are regular in form, the court declares their legal force and worth, not as evidence of plaintiff's title or ultimate right to the office, but their legal value in support of his present claim,--in this case, the possession of the records of the clerk's office. These credentials may be subject to impeachment in quo warranto proceedings, where all the antecedent facts may be investigated, and in such proceedings the court may say what ought to have been done, and give judgment accordingly; but in mandamus the court knows only what has been done, and, if the same is legal and authoritative on its face, further inquiry is foreclosed. The question tendered by this application for mandamus is not who is or may be finally entitled to this office, upon investigation of all the precedent facts of jurisdiction or regularity, but which of these parties--the one holding the appointment of the judge, supplemented by the provision of the state constitution, hereinafter considered, and the other the appointment of the board of county commissioners -- is presently, and pending such investigation, entitled to the possession of the property pertaining to such office. It may be that in this particular case a decision of this question will render further investigation by quo warranto fruitless, but that could only be so because everything is before the court on this record that could be presented in quo warranto. It would not justify the withdrawal of this case from the dominion of the general rule, but would rather demonstrate that, as a matter of fact, no hardship could result to either party by a decision in this case. The specific and only object sought by this appellant, and the specific and only subject covered by the alternative writ in this case, being the immediate and present possession of the seal and other property pertaining to the clerk's office, we hold that appellant was entitled to proceed by mandamus, unless he had other plain, speedy, and adequate remedy, in the ordinary course of law. Territory v. Shearer, 2 Dak. 332, 8 N.W. 135; Crowell v. Lambert, 10 Minn. 369, (Gil. 295;) State v. Sherwood, 15 Minn. 221, (Gil. 172.)
The statute authorizes proceedings in the nature of quo warranto to determine the title to office, and this is the remedy which respondent claims should have been resorted to in this case. So far as we have succeeded in showing that this is not a proceeding to try the title to this office, the objection to the use of mandamus is removed; but, beyond this, an action in the nature of proceedings in quo warranto would, in our judgment, be neither speedy nor adequate. It would not be speedy; for, in the ordinary course of the law, a final determination of the rights of the respective parties to this proceeding would not be reached during the present term of office. State v. Sherwood, 15 Minn. 229, (Gil. 172.) It would not be adequate, for it would not accomplish the object sought. A judgment of ouster against respondent, and in favor of appellant, would not put him (appellant) in possession of the records of the office to which such judgment would establish his title. He might still be obliged to resort to mandamus to obtain such possession. Section 5353, Comp. Laws; Territory v. Shearer, 2 Dak. 346, 8 N.W. 135. From these views it follows that, in our opinion, appellant has not mistaken his remedy, but is properly proceeding by mandamus; and we will now proceed to consider the case upon the merits.
The respondent, Jones, claims possession of the records and other property in controversy by virtue of his appointment as clerk of the district court in and for Lawrence county, in 1887, by the then judge of the district of which said county was a part; and section 4, art. 26, of the constitution of South Dakota, which section is as follows: "All officers civil and military, now holding their offices and appointments in this territory under the authority of the United States, or under the authority of the territory of Dakota, shall continue to hold and exercise their respective offices and appointments until superseded under this constitution." If, in a solution satisfactory to ourselves of the questions presented by this case, it had become very material, we should have pursued with considerable interest the inquiry as to the qualifications of the respondent, by virtue of the judicial appointment, as an officer "under the authority of the United States or the territory of Dakota." Evidently, the provisions of the organic act, authorizing the appointment by "each judge of the supreme court of one person as clerk of the district over which he presides," did not, in the opinion of the early law-makers of...
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