Enge v. Cass
| Decision Date | 24 July 1914 |
| Citation | 148 N.W. 607,28 N.D. 219 |
| Parties | R. S. ENGE v. JOHN L. CASS |
| Court | North Dakota Supreme Court |
Appeal from District Court, Mercer County, S. L. Nuchols, J.
Action in the nature of quo warranto to determine respondent's right to hold the office of state's attorney. From a judgment in defendant's favor, plaintiff appeals.
Affirmed.
Newton Dullam, & Young, for appellant.
To be eligible to the office of state's attorney, a person must have been previously admitted to practise in this state as an attorney at law. 4 Cyc. 899; Rev. Codes 1905, §§ 494, 497; Const. § 211; Rev. Codes 1905, § 2494; State v. Russell, 83 Wis. 330, 53 N.W. 441; Jenness v. Clark, 21 N.D. 150, 129 N.W. 357, Ann. Cas. 1913B, 675.
A person who is ineligible to hold public office cannot be elected thereto, and if elected, his election is a nullity. State ex rel. Reynolds v. Howell, 70 Wash. 465, 41 L.R.A.(N.S.) 1119, 126 P. 954; Searcy v. Grow, 15 Cal. 118; People ex rel. Simmons v. Sanderson, 30 Cal. 160; Taylor v. Sullivan, 45 Minn. 309, 11 L.R.A. 272, 22 Am. St. Rep. 729, 47 N.W. 802; People ex rel. Marshall v. Leonard, 73 Cal. 230, 14 P. 853; State ex rel. Richards v. McMillen, 23 Neb. 385, 36 N.W. 587; Re Corliss, 11 R. I. 638, 23 Am. Rep. 538; State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N.W 739, 51 N.W. 602; State ex rel. Nourse v. Clarke, 3 Nev. 566; Brown v. Goben, 122 Ind. 113, 23 N.E. 519; State ex rel. Perine v. Van Beek, 87 Iowa 569, 19 L.R.A. 622, 43 Am. St. Rep. 397, 54 N.W. 525.
H. L Berry and Thorstein Hyland, for respondent.
Under both the Constitution and statutes, defendant possessed due qualifications for such office. N.D. Const. P 173; N.D. Rev Codes 1905, P 17; Session Laws, 1911, chap. 131, amending N.D. Rev. Codes 1905, § 605; State ex rel. Knappen v. Clough, 23 Minn. 17; N.D. Rev. Codes 1905, § 123, subdiv. 3; N.D. Rev. Codes 1905, § 499; Danford v. Egan, 23 S.D. 43, 139 Am. St. Rep. 1030, 119 N.W. 1021; 20 Ann. Cas. 418; Howard v. Burns, 14 S.D. 383, 85 N.W. 920.
It is sufficient that a candidate be qualified at the time of induction into office. State ex rel. Reynolds v. Howell, 41 L.R.A.(N.S.) 1119, note; Bradfield v. Avery, 23 L.R.A.(N.S.) 1228, note.
Action in the nature of quo warranto. Plaintiff at all times mentioned was a citizen and qualified elector of Mercer county, and duly admitted as an attorney and counselor at law in the courts of this state. On July 1, 1912, he was duly appointed to the office of state's attorney of such county to fill a vacancy then existing therein, which term expired on the 1st Monday in January, 1913. He duly qualified pursuant to such appointment, and entered upon the discharge of his duties, and continued in such office until January 24, 1913.
Defendant at all times mentioned was a citizen and qualified elector of Mercer county, and at the general election held on November 5, 1912, he was a candidate for such office and received a majority of the votes cast for that office. Thereafter, and on November 20, 1912, a certificate of election to such office was issued to him by the county auditor. Within ten days after the 1st Monday in January, 1913, he filed his oath of office and official bond in conformity with the statute.
Plaintiff refuses to surrender the office to him, urging as a reason that defendant, at the time of his election, had not been admitted to practise as an attorney and counselor at law in this state. Defendant had been duly admitted to practise in the courts of Minnesota in 1880, and practised there for a period of about ten years thereafter. He was not admitted to practise in this state, however, until December 14, 1912.
Upon plaintiff's refusal to surrender the office to the defendant, the latter sued out an alternative writ of mandamus, in obedience to which writ plaintiff surrendered possession of the office to defendant on January 24, 1913, ever since which time defendant has been and still is in possession of the office. This proceeding was brought to oust defendant from such possession, and to restore to plaintiff his alleged right to the exercise of the duties of such office, and to the fees, emoluments, and privileges thereof.
The trial court made findings and conclusions favorable to defendant, upon which judgment was rendered in his favor in June, 1913. From such judgment this appeal is prosecuted.
The facts are not in dispute. The sole question involved is whether the fact that defendant, at the date of his election, had not been admitted to practise as an attorney and counselor in the courts of this state, rendered him ineligible as a candidate. In other words, was his election null and void?
This question has been passed on by many of the courts of this country, and the decisions are much in conflict, but we are convinced that by the weight of modern authority, as well as by the sounder reason, the decision of the learned trial court was correct and should be affirmed.
There appears to be no express provision, either in our Constitution or in our Code, prescribing that a candidate for such office shall be licensed to practise as an attorney and counselor in the courts of this state; nor do we find any express provision prescribing as a necessary qualification for holding the office of state's attorney, that the incumbent be first admitted to practise as an attorney and counselor in the courts of this state. It is, however, quite clearly implied, both in the Constitution and statutes, that the incumbent of such office shall possess such qualification. Section 173 of the Constitution enumerates the county officers to be elected at each general election, and among the list designated is "state's attorney," and this section also provides that all such enumerated county officers shall be electors of the county of which they are elected. The expression, "state's attorney," as thus used, clearly implies that such officer shall be an attorney and counselor at law, duly admitted in the courts of this state, and the statutes defining the duties of such official clearly contemplate and imply that such officer shall be a duly licensed attorney and counselor at law. The framers of the Constitution, as well as the legislature, evidently assumed, in accordance with universal custom and usage, that such officer should possess this qualification, but as above stated, neither expressly so required.
For the purposes of this appeal we shall assume that by necessary implication, both from the Constitution and statutes, no person is competent to qualify and enter upon the discharge of his duties as state's attorney unless he is first duly licensed to practise as an attorney and counselor at law in the courts of this state. It does not follow, however, that he must have possessed such qualification at the date of his election. In other words, if at such time he was an elector of the county, he possessed sufficient qualification to render him eligible as a candidate at the election.
We shall not attempt to review the many authorities pro and con on the question before us, but will refer to the following recent authorities:
In the case of Ward v. Crowell, 142 Cal. 587, 76 P. 491, the facts were that one Crowell was elected to the office of county surveyor at the general election held on November 4, 1902, and the only question presented was whether he was legally incapable of holding said office because at the time of his election he was under a certain disability, which was removed before he entered upon the office. At the time of his election he was admittedly qualified to be so elected in every respect except one; to wit, he had not then received a licensed land-surveyor's certificate from the state surveyor, as provided by law, although he had received such certificate before the term of office commenced. It was there contended, as here, that for such reason he was not legally elected, and could not legally hold the office. Among other things, the court said:
"The general rule is that every citizen who is a qualified elector has the right to hold any office for which he has been elected or appointed. The general limitations of the right are these: 'No person is capable of holding a civil office who at the time of his election or appointment is not of the age of twenty-one years and a citizen of this state.' . . . 'No person is eligible to a county office who at the time of his election is not of the age of twenty-one years, a citizen of the state, and an elector of the county in which the duties of the office are to be exercised.' . . . 'No person is eligible to an elective county, district, or township office who, at the time of his election, is not of the age of twenty-one years, a citizen of the state and an elector of the county, district, or township in which the duties of the office are to be exercised . . .; and provided, further, that no person shall hereafter be eligible to the office of district attorney who has not been admitted to practise in the supreme court of the state of California.' . . . There are also some provisions of the Constitution and the Code of Civil Procedure to the effect that no person shall be eligible to certain offices unless he shall have been a citizen and resident for a certain period of time 'next preceding his election;' but none of these provisions include the office of county surveyor. However, in § 135 of the county government act it is provided that 'the county surveyor must be a licensed land surveyor of the state, and must make any survey that may be required by order of court,' etc.; and upon this provision the contention is based that appellant could not legally hold the office because at the time of his election he was...
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