Knockenmuss v. De Kerchove

• Decision Date: 03 June 1939
• Docket Number: No. 8178.,8178.
• Citation: 285 N.W. 441,66 S.D. 446
• Parties: KNOCKENMUSS v. DE KERCHOVE.
• Court: South Dakota Supreme Court

66 S.D. 446

285 N.W. 441

KNOCKENMUSS

v.DE KERCHOVE.

No. 8178.

Supreme Court of South Dakota.

April 14, 1939.

Rehearing Denied June 3, 1939.

Appeal from Circuit Court, Pennington County; A. R. Denu, Judge.

Action by Fred J. Knockenmuss against Norbert De Kerchove, to determine the defendant's right to hold the office of City Commissioner. Judgment for defendant, and plaintiff appeals.

Affirmed.

Thos. G. Wall, of Sturgis, for appellant.

Philip & Leedom, of Rapid City, for respondent.

ROBERTS, Judge.

This action was commenced by Fred J. Knockenmuss, representing himself to be “a resident taxpayer and duly qualified elector and voter in the city of Rapid City,” against Norbert DeKerchove, having for its purpose the determination of the right of defendant to hold the office of city commissioner of Rapid City.

Counsel for the plaintiff called the attention of the state's attorney of Pennington County, South Dakota, to the alleged ineligibility of the defendant to hold the office and requested the state's attorney to commence an action to oust the defendant from office. The state's attorney declined to proceed and plaintiff then applied to the circuit court for leave to bring an action. The court granted the request.

The complaint alleges that defendant was inducted into office by virtue of an election held on April 20, 1937, and presumes to hold the office without lawful right; that defendant is ineligible to hold the office for the reason that he “was born in Canada in the Province of Quebec * * and has ever remained a subject of Great Britain and Canada.” It is alleged that Charles Aagard was legally elected, but it is not alleged that he or any other person is asserting any claim to the office. Defendant filed a demurrer to the complaint. Upon presentation to the court, the demurrer was sustained, and an appeal was perfected to this Court.

[1] The state's attorney is authorized to institute an action in the name of the state, upon his own information or upon the complaint of a private party, under sections 2781 and 2784, Rev.Code 1919, as amended by chapter 289, §§ 1, 4, Laws 1919, providing that the remedies formerly attainable by quo warranto and proceedings in the nature of quo warranto may be obtained by civil action, against any person usurping, intruding into, or unlawfully holding or exercising any public office. Prior to the amendatory act of 1919, such an action to try title to public office could be brought only by the state's attorney. This act distinctly changed the practice which had prevailed by permitting an action to be brought on leave of the court by a person having a special interest. Section 2784, as amended, reads as follows:

“An action may be brought by any State's Attorney in the name of the State, upon his own information, or upon the complaint of a private party, or an action may be brought by any person who has a special interest in the action, on leave granted by the Circuit Court or Judge thereof, against the party offending in the following cases:

“1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state; or

“2. When any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall make a forfeiture of his office; or,

“3. When any association or number of persons shall act within this state as a corporation, without being duly incorporated.”

The statute recognizes rights of action founded upon separate and distinct interests. Usurpation of public office is a public wrong, and the state's attorney may prosecute an action to redress such wrong. The statute also recognizes that there may be instances in which an individual may have an interest entitling him to institute such an action.

[2] Plaintiff emphasizes the fact that the circuit court granted him permission to institute this action. It is evident that if he did not have a “special interest” the court was without authority to grant him leave under this statute, and that defendant was not deprived of the right to challenge the sufficiency of the allegations of the complaint. The question then presented is whether the interest of plaintiff as a citizen and taxpayer was sufficient to entitle him to institute this proceeding.

[3] In Newman v. U. S. ex rel. Frizzell, 238 U.S. 537, 35 S.Ct. 881, 883, 59 L. Ed. 1446, a case involving the right of the plaintiff as a citizen and taxpayer to use the name of the government in quo warranto proceedings, it is said: “Frizzell does not allege that he had been an incumbent of that office and had been unlawfully ousted before his term expired. He does not set up any claim to the...