Jenness v. Clark

• Citation: 21 N.D. 150,129 N.W. 357
• Parties: JENNESS v. CLARK.
• Decision Date: 21 December 1910
• Court: United States State Supreme Court of North Dakota

21 N.D. 150

129 N.W. 357

JENNESS

v.CLARK.

Supreme Court of North Dakota.

Dec. 21, 1910.

Syllabus by the Court.

Section 764, Rev. Codes 1905, which prescribes that at each general election there shall be elected in each county a superintendent of school whose term shall be two years “and until his successor is elected and qualified,” is a constitutional and valid enactment.

Following the rule announced in State v. Fabrick, 16 N. D. 94, 112 N. W. 74,held that, under such statute, the regularly elected incumbent of the office is entitled to hold the same until his successor is legally elected and qualified.

A person who is ineligible to hold a public office cannot be elected thereto, and his election is a nullity. The word “elected,” as used in section 764, Rev. Codes 1905, signifies an election of a qualified successor to the incumbent.

The incumbent of a public office who has the right to hold over until his successor is elected and qualified has such a special interest as enables him to maintain an action under the provisions of chapter 25, Code Civ. Proc. (section 7349 et seq., Rev. Codes 1905), against one who intrudes himself into such office, unless such right has been lost or waived in some manner either by the voluntary surrender of the office, or by some other equivalent act.

Appeal from District Court, Oliver County; W. C. Crawford, Judge.

Action by Iva O. Jenness against S. H. Clark. Judgment for defendant, and plaintiff appeals. Reversed and remanded.Hyland & Nuessle, for appellant. Reimestad & McCormick, for respondent.

FISK, J.

Appellant brought this action under the provisions of chapter 25, Code Civ. Proc. (Rev. Codes 1905, § 7349 et seq.), to try title to the office of superintendent of schools of Oliver county. Defendant demurred to the complaint upon the ground that the same does not state facts sufficient to constitute a cause of action, which demurrer was sustained, and, plaintiff electing to stand on the complaint, judgment in defendant's favor was entered, from which judgment this appeal is prosecuted.

The ground on which the trial court sustained such demurrer is not disclosed, but the contentions of respondent, briefly stated, are that the complaint fails to state a cause of action because it discloses that appellant's term of office as such superintendent expired on the first Monday of January, 1909, and that respondent, who was the successful candidate for such office at the preceding general election and to whom was issued a certificate of election in due form, duly qualified within the time required by law, and at the time this action was commenced was in the possession of such office, discharging the duties thereof. Hence that appellant has no such special interest in the office as will permit her to maintain this proceeding, even admitting the ineligibility of respondent to hold the office. It is also asserted that, because the complaint discloses that appellant surrendered such office to respondent,it affirmatively appears therefrom that she has ceased to have such a special interest therein as will enable her to maintain the proceeding. The complaint need not be set forth as its alleged insufficiency is apparently conceded to depend upon the soundness of one or more of the legal propositions advanced by respondent's counsel.

To my mind the most serious question on this appeal is embraced in respondent's second contention, which is, in effect, that a successor to the plaintiff, in the person of respondent, has been elected and has duly qualified, and therefore plaintiff's right to the office was thereby terminated. The demurrer, of course, admits respondent's ineligibility to hold the office as alleged. In the light of such admission, can it be said that a successor to plaintiff has been elected and qualified so as to terminate her right to the office?

Appellant's counsel contend that because of respondent's ineligibility to hold the office his election was void, and that consequently plaintiff's right to the office still continues and will continue until a qualified person has been elected and has qualified. That such election was void we entertain no doubt. Such is practically the unanimous voice of the authorities. 23 Am. & Eng. Encyc. of Law (2d Ed.) 338, and cases cited; Sheridan v. City of St. Louis, 183 Mo. 25, 81 S. W. 1082; 2 Am. & Eng. Ann. Cas. 480, and cases cited in note on page 485. The election being a nullity, it inevitably follows, assuming the constitutionality of section 764, Rev. Codes 1905, which we will hereafter consider, that appellant is entitled to continue in the office until such time as her successor shall be elected and qualified, unless by some act on her part she has relinquished her right thereto. This court in State v. Fabrick, 16 N. D. 94, 112 N. W. 74, expressly so held, citing numerous authorities. Our sister state of Minnesota has likewise so held. Taylor v. Sullivan, 45 Minn. 309, 47 N. W. 802, 11 L. R. A. 272, 22 Am. St. Rep. 729. Respondent's counsel contend that appellant in her amended complaint admits that respondent was duly elected and has duly qualified; but we do not thus construe such pleading. On the contrary, such complaint expressly alleges facts showing respondent's ineligibility to hold the office at all times mentioned therein. If he was ineligible as the demurrer admits, then, as we have above decided, no election took place as the same was a nullity. Respondent's ingenious argument regarding the meaning of the word “qualified,” as used in the statute, is somewhat misleading, in that it assumes that his right to the office was alone dependent upon the act of qualifying. It is no doubt true, as argued by counsel, that the meaning of the word “qualified” as thus used merely refers to the taking of the required oath of office and giving an official bond as required by statute where that is necessary. Something more than the act of qualifying is required, however, to entitle respondent to the office. He must have first been elected thereto.

We will now determine the question whether section 764, Rev. Codes, aforesaid, is constitutional. This section is as follows: “There shall be elected in each organized county, at the same time other county officers are elected, a county superintendent of schools, whose term of office shall be two years, commencing on the first Monday in January following his election, and until his successor is elected and qualified. * * *” Respondent's counsel contends that this section violates section 150 of the Constitution, which reads: “A superintendent of schools for each county shall be elected every two years, whose qualifications, duties, powers and compensation shall be fixed by law.” It is argued by respondent's counsel that such constitutional provision clearly fixes the term at two years, and hence...