Syllabus
by the Court.
The
clerk of the district court is an officer of the court, and
in order to properly perform the duties devolving on him by
law, it is the duty of the judge of the court to recognize
him as such officer.
The
office of clerk of the district court, under the law, is to
be filled by election, and the respondent had no authority to
fill the office by appointment. One of the persons voted for
at the election was entitled to be recognized by the
respondent as clerk, and that one was the person holding the
prima facie title to the office. When the respondent refused
to recognize the person holding prima facie title, mandamus
was the proper remedy to compel such recognition.
[Ed
Note.-For cases in point, see Cent. Dig. vol. 10, Clerks of
Courts, §§ 4-7.]
Quo
warranto is the proper method of determining disputed
questions of title to public office, yet a mere groundless
assumption of an election on the part of a person claiming
title to public office, and the apparent exercise of the
functions of the office de facto, will not deter the court
as a preliminary question, from examining the uncontroverted
facts before it for the purpose of determining who has prima
facie title, notwithstanding the person claiming adverse
title may not be a party to the proceedings.
Where
two persons claiming title to the office of clerk of the
district court present their credentials on which they base
their claim to the office to the judge of the district court
and each requests the judge to recognize him as such clerk
it is the duty of the judge to examine such credentials for
the purpose of determining which one of the claimants holds
the prima facie title to the office, and such examination
does not constitute passing upon the title to public office.
[Ed.
Note.-For cases in point, see Cent. Dig. vol. 10, Clerks of
Courts, § 31.]
Title
to public office, based upon mistakes of fact or
misconceptions of law, may impart a color of right which will
bar the allowance of a mandamus; but palpable disregard of
law renders the action whereby an office is seized merely
colorable, and in a clear case will be brushed aside as
affording no obstruction to the exercise of a plain legal
duty.
[Ed.
Note.-For cases in point, see Cent. Dig. vol. 33, Mandamus,
§§ 161-169.]
Application
of Toney Matney for writ of mandamus to John H. King, judge
of the district court of Muskogee county. Writ granted.
This
matter was presented to the court upon the petition of the
relator, the response of the respondent, and the agreed
statement of facts, signed by counsel for the relator and
respondent, respectively, all of which are hereafter set out
in full in the above order:
Petition.
"Comes
now the plaintiff, Toney Matney, and represents and shows to
this court that at the general election held in the state of
Oklahoma on the 17th day of September, 1907, he was duly and
legally elected to the office of district clerk of the county
of Muskogee, state of Oklahoma, having received a majority of
the votes of said county cast at said election for said
office, and that he has since received his certificate of
election from the clerk of said county, and has taken the
oath of office and given the bond as required by law; that on
the 30th day of October, 1907, in a mandamus proceeding in
the United States court for the Western District of the
Indian Territory at Muskogee, in which Carl Bucher et al.
were plaintiffs and the county commissioners of said county
of Muskogee were defendants, which was a proceeding to
require said defendants as such commissioners to canvass the
vote of said county for all the county offices of said
county, said court rendered judgment against said plaintiffs
and in favor of said defendants by then and there discharging
the rule and dismissing said cause upon said defendants'
response in obedience to the terms of the alternate writ of
mandamus issued by said court, in which response said
defendants stated that they had canvassed the vote of said
county; that said commissioners found by canvassing the vote
of said county that your petitioner had been duly elected to
the office of district clerk of said county, and that the
certificate issued by the clerk of said county to your
petitioner was in obedience to the canvass of said
commissioners; that there has been no appeal taken from the
judgment of said court; that said court had jurisdiction to
determine the question of the petitioner's right to said
office, and that said judgment was in favor of your
petitioner; that after having qualified as required by law,
and as above stated, to wit, on the 18th day of November,
1907, your petitioner entered upon the discharge of the
duties of his office as such district clerk, and has remained
in the active discharge of said duties up to this time; that
the records belonging to his office as district clerk of said
county are in the control and custody of John H. King, judge
of the Third judicial district of the state of Oklahoma,
which district is composed of the counties of Muskogee and
Wagoner in said state; that on the 21st day of November,
1907, your petitioner presented to the said John H. King,
sitting as a court at Muskogee in said county, his petition
in writing, stating that he was the duly elected clerk of
said court; that he had qualified as such and requested said
court to turn over to him as such clerk the records and
papers which properly belong to him as clerk of said court.
And he further states that said court refused to recognize
your petitioner as said clerk, and refused to turn over to
him any of the papers or records which belonged to him as
clerk of said court; that the said Carl S. Bucher has no
legal right to hold said office, and is a usurper. The
plaintiff further states that he is remediless in the
premises, by or through ordinary process or proceedings at
law, and he therefore prays this honorable court to award
against the said district court a writ of mandamus,
commanding and requiring it to recognize your petitioner as
the district clerk of said court, and to vacate all orders
heretofore made inconsistent therewith, and to turn over to
your petitioner all papers and records which legally belong
to him, and for such other process and orders and remedies as
may to the court seem meet.
"J.
E. Wyand,
"Thos.
H. Owen,
"Baker & Purcell.
"Attorneys
for Petitioner.
"State
of Oklahoma, County of Muskogee
-ss.:
"Toney
Matney, of lawful age, being duly sworn, says that he is the
plaintiff above named; that he has read the foregoing
petition, and knows the contents thereof; and that the facts
therein set forth are true.
"Toney
Matney.
"Subscribed
and sworn to before me this 23d day of November, A. D. 1907.
"E.
A. Eker, Notary Public.
"My
commission expires June 22, 1910."
Response
of Defendant to Plaintiff's Petition.
"Comes
now the respondent, John H. King, judge of the Third judicial
district for the state of Oklahoma, composed of the counties
of Muskogee and Wagoner, by and through his counsel George S
Ramsey, and for answer to the plaintiff's petition for a
writ of mandamus in this case says that he neither denies nor
admits that the petitioner, Toney Matney, was duly and
legally elected to the office of district clerk of the county
of Muskogee, state of Oklahoma, on the 17th day of September,
1907, but he states in response to this allegation by the
petitioner that said Toney Matney was a candidate before the
people at said election for the office of clerk of the
district court of said county of Muskogee on the Democratic
ticket, and that Carrol S. Bucher was a candidate for the
office of district clerk in and for the said county of
Muskogee at said election held on September 17, 1907; and
this respondent further states in this connection that both
said Toney Matney, the petitioner, and said Carrol S. Bucher,
claim to be clerk of the district court in and for Muskogee
county by the result of the said election held on September
17, 1907. In so far as this respondent is concerned it is of
no importance to respondent as to which of said candidates,
that is, Toney Matney or Carrol S. Bucher, was elected to the
office of district clerk at said election; but this
respondent here states that he has a well-founded opinion as
to which of the two said candidates was elected to said
office, and that this opinion disqualifies him from hearing
and adjudicating any contest by either of said applicants in
a suit to try the title to said office.
"Respondent
states that on November 21, 1907, under the order of this
court he convened the district court at Muskogee in and for
Muskogee county, as judge of the Third judicial district of
the state of Oklahoma, and was confronted by contending
candidates for each county office in the county of Muskogee.
Respondent states that it seems to be the impression of all
the candidates and claimants for county offices in the county
of Muskogee that he possessed, as judge of said judicial
district, authority to determine, upon convening his court
who were entitled to each county office in Muskogee county,
and that each claimant for county office in Muskogee county
presented to him, upon the opening of his court, certificates
of election, and asked that he recognize them as county
officials. Respondent states that upon said date, that is,
November 21, 1907, Carrol S. Bucher presented to him a
certificate of election, dated November 8, 1907, and signed
by Frank R. Applegate as county clerk of the proposed county
of Muskogee, in the proposed state of Oklahoma, a copy of
which certificate of election is hereto attached and marked
'Exhibit No. 1' to this response, and made...
