Ewing v. Turner

• Decision Date: 03 March 1894
• Citation: 35 P. 951,2 Okla. 94,1894 OK 20
• Parties: EWING v. TURNER, Territorial Treasurer.
• Court: Oklahoma Supreme Court

35 P. 951

2 Okla. 94, 1894 OK 20

EWING v. TURNER, TerritorialTreasurer.

Supreme Court of Oklahoma

March 3, 1894

Syllabus by the Court.

1.Mandamus will not lie to try their title to a public office.

2.It may be stated as a general rule, in an action in mandamus that, where a relator is entitled to the aid of mandamus to obtain possession of the books, records insignia paraphernalia, and official belongings of such office; and in granting the writ the court will not go behind such showing and try the title thereto.

3.When an incumbent of a public office is removed by the governor acting under statutory authority giving him such power, and a signed and a successor is thereupon appointed and commissioned and duly qualified as required by law, the court, in determining who is entitled to the books, records, insignia, paraphernalia, and official belongings of such office, will not go behind the last commission of the governor, and try the title to such office.

4.The relator is not entitled to the aid of mandamus to obtain possession of funds in the hands of the territorial treasurer, when it appears that such relator has been removed by the governor, and a subsequent commission has been lawfully issued for the same office to another, for the reason that in seeking to avoid the later commission the relator necessarily puts in issue the title to the office, which cannot be tried by mandamus; and in the face of the later commission, the relator being unable to show a prima facie title to such office, the writ must be denied.

Dale C.J. and Burford, J. dissenting as to the reasons assigned but concurring as to conclusions reached.

Original action in mandamus by Amos 10.Ewing, treasurer, against M. L. Turner, territorial treasurer.Writ denied.

The other facts fully appear in the following statement by SCOTT J.:

This is an original action in mandamus, brought in the supreme court by Amos A. Ewing, as treasurer of the board of regents of the Agricultural and mechanical college of the territory of oklahoma, against M. L. Turner, as territorial treasurere of Oklahoma territory: The petition prays for an alternative writ of mandamus, which was granted by Chief Justice DALE on the 26th day of January, returnable to the full bench on the 31st day of January, 1984.All the facts are stated in the petition and affidavit, and the return to the alternative writ.The petition reads:

"Your relator respectfully represents to the court:

"(1) That he is a citizen of the United states and a resident of the territory of Oklahoma, and was, on and prior to the 26th day of January, 1893, and then was, and now is, in all things qualified to hold the office of a member of the board of regents of the Oklahoma Agricultural and Mechanical College, as well, also, as treasurer of side board.

"(2) That on or about the 26th day of January, 1893, he was duly appointed by the Hon. A. J. Seay, who was at that time the governor of the territory of Oklahoma, as regent of the Agricultural and Mechanical college of the territory of Oklahoma, situated at the town of Stillwater, in Payne Co., O. T.

"(3) That afterwards. to wit in the month of January 1893, his said appointment was duly and legally confirmed by the council of said territory at tits regular session, and a commission, in due course of time, issued to him as such regent of said college a copy of which commission is hereto attached, marked 'Exhibit A,' and made a part hereof; and your relator duly accepted said appointment and qualified as required by law, by taking and subscribing to the oath of office required of officers in said territory.

"(4) That afterwards, to wit, on the 21st day of March, 1893, at a regular session of said board of regents of said college, he was duly and legally elected by said board as treasurer of the board of regents of said Agricultural and Mechanical College; and thereupon, after entering into such bond as was by said board required of him, and after said bond of regents, as well as the governor of the territory of Oklahoma, he thereupon entered into said office of treasurer of said board, and continued, and still continues, to occupy said office as treasurer of the board of regents of said college; and he is now, and at all times since has been the duly elected and qualified and acting treasurer of the said board of regents.

"(5) That as such treasurer, and by virtue of his said office of treasurer of said board, he is the custodian of all money, books blanks, and other paraphernalia belongings to the office of treasurer of said board of regents, and as such treasurer of said board he is the custodian and entitled to all money belonging to said college, and is the general disbursing officer of said board of regents and all debts and expenses of said college, including the salaries of teachers, officers, and employes, as well as the current expenses of said college, are paid, and can only be paid, through him as such treasurer, upon be paid, through him as such treasurer upon the order of said board legally authorized by them; and as such treasurer he is entitled to the possession of all money belonging to said office, as well as all funds and money belonging to said college.

"(6) That in the month of January, 1893, one Samuel Murphy was appointed treasurer of the territory of Oklahoma, and in his capacity as treasurer, and as such treasurer of Oklahoma, he received from the treasurer of the government of the United states, for the use and benefit of , and as th e funds belonging to, said college, to be used in defraying the general expenses of said college, through the treasurer of the said Agricultural and Mechanical College, the sum of $ 19,000.00.

"(7) That on or about the 17th day of January, 1983, the said Murphy resigned his said office of treasurer of the territory of Oklahoma, and on the same day the Hon. William C Renfrow, as governor of said territory, appointed the respondent herein, the Hon. M. of Oklahoma, and he thereupon entered on his duties of treasurer of said territory; and he(the said M. L. Turner) is the duly appointed, qualified, and acting treasurer of said territory of Oklahoma.

"(8) That about the time the said Murphy resigned the office of treasurer of said territory, he turned over and delivered to the said Turner, (respondent herein,) as his successor in office, the said $ 19,000.00 which belongs to said college; and the said Turner has at this time, as treasurer of said territory, in his possession, said money belonging to said college, to wit, the sum money belonging to said college, to wit, the sum of $ 19,000.00, which he wrongfully and unlawfully retains from your relator as treasurer aforesaid.

"(9) That on or about the 27th day of December, 1893, the said board of regents of said college, at a regular meeting of said board, in open session thereof, and in accordance to the rules and regulations of said board, by resolution legally passed and adopted, ordered and directed the treasurer of said territory to deliver and turn over to the treasurer of said board of regents, and for the use and benefit of said college, to be used in defraying the usual legitimate expenses of said college, the said sum of $ 19,000.00 which sum of $ 19,000.00 belonged to said college,and to the possession of which said money your relator, ass treasurer of said college, was and is duly and legally entitled, a copy of which said order and resolution is hereto attached, marked 'ExgibitB' and made a part hereof.

"(10) That on or about the 28th day of December, 1893, your relator, as treasurer of said board of regents, and in pursuance of the order of said board of regents, presented said order of Murphy, as treasurer of said territory, and requested and demanded of him, the then and there treasurer of said territory, the said sum of $ 19,000.00; but the said Murphy, disregarding his duties as treasurer of Oklahoma, as well as the interests of said College, refused and neglected to deliver and turn over said money to your relator, and has at all times since refused and neglected so to do.

"(11) That on the 25th day of January, 1894, your relator, as such treasurer of said board of regents, presented said order to the said Turner, and requested and demanded of him , as the treasurer of said territory, the said sum of $ 29,000.00 belongings to said college, and as the treasurer of said board of regents demanded said money for the use and benefit, and to be used in defraying the legitimate expenses, of said college; the said money being demanded by your relator of the said Turner for the purpose of using the same in carrying on the business of said college, and to defray the legitimate and legal necessary expenses of said college in paying the teachers, officers, and other employes of said college, as well as the current contingent expenses thereof.But your petitioner alleges that, the said Turner disregarding his duties as treasurer of at territory of Oklahoma, and disregarding the rights of your relator as treasurer of said college, as well as the rights and interest of said college, and the rights and demands of the patrons of said college and the people of the territory of Oklahoma, he(the said Turner, respondent herein) wrongfully and unlawfully refused, and still refuses and neglects to delive and neglects, to deliver and turn over said money to your relator, but unlawfully continues to hold the same in his own possession, and to withhold said fund from the legitimate and proper use to and for which it was intended and appropriated by law, all of which is contrary to law, and all of which is contrary to law, and in violation of the rights of your relator and the said college, as well as the people of the

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