Prichard v. McBride
| Decision Date | 11 January 1916 |
| Citation | 28 Idaho 346,154 P. 624 |
| Parties | R. G. PRICHARD, Appellant, v. F. J. MCBRIDE and C. E. HAGMAN, Respondents |
| Court | Idaho Supreme Court |
COUNTY COMMISSIONERS-CHAIRMANSHIP-DURATION OF-ELIGIBILITY OF COMMISSIONER-NOT QUESTIONED IN MANDAMUS PROCEEDING.
1. Held that, under sections 1908 and 1909, Rev. Codes, it is the duty of the members of boards of county commissioners at their first regular meeting on the second Monday of January next after their election to elect a chairman from their number, who holds such position until the expiration of his term of office as commissioner, unless he resigns or is removed from, or ceases to be a member of, the board of county commissioners by operation of law.
[As to the various ministerial duties of county officers, see note in 95 Am.St. 80.]
2. Held, that the trial court did not err in holding that the eligibility of, or title to, the office of County Commissioner McBride under appointment could not be inquired into in this proceeding.
APPEAL from the District Court of the Eighth Judicial District in and for Bonner County. Hon. John M. Flynn, Judge.
Proceeding by mandamus to reinstate petitioner as chairman of the board of county commissioners of Bonner county. Judgment for defendants. Reversed.
Judgment vacated and set aside. Costs awarded to appellant.
H. H Taylor, for Appellant.
While legislative bodies may reconsider an appointment, their power to so reconsider has clearly ceased to exist when the man elected has taken office. It is then too late to rescind. When an appointment has been made, it is complete. (State v. Starr, 78 Conn. 636, 63 A. 512; Speed v. Common Council of Detroit, 97 Mich. 198, 56 N.W. 570; Attorney General v. Love, 39 N.J.L. 476, 23 Am. Rep 234; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60; State v. Barbour, 53 Conn. 76, 55 Am. Rep 65, 22 A. 686; Fuller v. Miller, 32 Kan. 130, 4 P. 175.)
It was fully intended that when a chairman was elected, his term of office began, and he should serve as such until the second Monday in January, following the general election, when by law a new organization should be had. (Shelden v. Board of Commrs., 48 Kan. 356, 29 P. 759, 16 L. R. A. 257; 29 Cyc. 1371.)
It is only in cases where a tenure of office is not prescribed by law that the courts have determined that such removal could be made. (State v. Chatburn, 63 Iowa 659, 50 Am. Rep. 760, 19 N.W. 816.)
When the plaintiff was elected in June, 1915, as chairman to fill the vacancy, his term of office as chairman would not expire until January, 1917. (Board of Commrs. of Pulaski County v. Shields, 130 Ind. 6, 29 N.E. 385; Liggett v. Board of County Commrs., 6 Colo. App. 269, 40 P. 475, at 477; Chapman v. County Commrs., 79 Me. 267, 9 A. 728; Farrier v. Dugan, 48 N.J.L. 613, 7 A. 881; Manley v. Scott, 108 Minn. 142, 121 N.W. 628, 29 L. R. A., N. S., 652; 11 Cyc. 380, 388.)
The plaintiff never did give up the chairmanship of the board and McBride could not be found to be a de facto holder of that office, under the facts of this case. (Morton v. Broderick, 118 Cal. 474, 50 P. 644.)
In this action petitioner did not seek to try title to the office, but to inquire as to whether McBride was a de facto officer. The admission of facts in the petition and answer deprived the defendant McBride of any character as a de facto officer. (Warner v. Myers, 3 Ore. 218; Dew v. Judges of Sweet Spring District Court, 3 Hen. & M. (Va.) 1, 3 Am. Dec. 639; People v. King, 127 Cal. 570, 60 P. 35.)
G. H. Martin, for Respondents.
Where the term of office is not fixed by law, the incumbent holds at the will of the appointive power, the power of removal being incident to the power of appointment. And such appointments, if made by a board, are not affected by a change in the personnel of the board. (State ex rel. Childs v. Kiichli, 53 Minn. 147, 54 N.W. 1069, 19 L. R. A. 779; State v. Archibald, 5 N.D. 359, 66 N.W. 234; Wright v. Gamble, 136 Ga. 376, Ann. Cas. 1912C, 372, 71 S.E. 795, 35 L. R. A., N. S., 866; Carter v. Durango, 16 Colo. 534, 25 Am. St. 294, 27 P. 1057; Conwell v. Village of Culdesac, 13 Idaho 575, 92 P. 535; 29 Cyc. 1371-1396.)
No rules were ever made or adopted by the board of county commissioners concerning their action as permitted by Rev. Codes, sec. 1917C, as shown by page 143, Session Laws 1913. In the absence of such rules, the court will not disturb the ruling of such a board having all the necessary authority to make rules, when it is acting within the scope of its power. The board had the right to reconsider the vote by which Prichard was elected chairman, and to defeat his election on a reconsideration thereof and to declare the chairmanship vacant and to elect a new chairman. (
The chairman of the board is not a civil officer. As such he would not be subject to removal under the provisions of Rev. Codes, secs. 7445 and 7459. (Conwell v. Village of Culdesac, 13 Idaho 575 at 580, 92 P. 535.)
In a mandamus proceeding the production of a certificate of appointment, or the certificate of election issued by the proper election or canvassing board, if the office is to be filled by election, is conclusive of the rights of the holder of the certificate to the office until the title to the office has been tried in a proper proceeding. (State ex rel. Love v. Smith, 43 Okla. 231, 142 P. 408, L. R. A. 1915A, 832; State v. Blossom, 19 Nev. 312, 10 P. 430; Braidy v. Theritt, 17 Kan. 468; State v. Johnson, 35 Fla. 2, 16 So. 786, 31 L. R. A. 357; Conklin v. Cunningham, 7 N.M. 445, 38 P. 170; Stevens v. Carter, 27 Ore. 553, 40 P. 1074, 31 L. R. A. 342; Ellis v. Armstrong, 28 Okla. 311, 114 P. 327.)
In this action the plaintiff below and appellant here filed his affidavit for a writ of mandate against defendants below and respondents here. An alternative writ of mandate was issued on July 10, 1915, and was made returnable on the fifteenth day of that month. This writ of mandate was sought by appellant for the purpose of restoring him to the position of chairman of the board of county commissioners of Bonner county, of which he and the respondents were members.
To the alternative writ of mandate, respondents answered. The cause was tried before the court without a jury upon the admissions made by the pleadings and a stipulation of facts entered into between counsel for the respective parties. Upon the facts admitted by the pleadings and the stipulated facts the court made findings of fact and conclusions of law, which findings recite substantially all of the facts relied upon by the parties to this proceeding, and upon which the judgment of the trial court is based.
The trial court found, among other things, as follows:
That the plaintiff, C. E. Hagman, and Don C. McColl were the duly elected and qualified members of the board of county commissioners of Bonner county on the second Monday of January, 1915; that at a regular meeting of the board on said date, Don C. McColl was duly elected chairman of said board; that the said McColl acted as the chairman of the board, performing the duties and functions thereof, up to June 15, 1915, when he resigned such chairmanship; that at a regular meeting of the board of the 15th day of June, 1915, the plaintiff Prichard was by a unanimous vote duly elected chairman of said board of county commissioners; that on the 5th day of July, 1915, McColl ceased to act as a member of the board of county commissioners of Bonner county by reason of the creation of Boundary county, including practically all of commissioner McColl's district No. 3, on which date defendant McBride qualified under appointment of the governor of this state as a member of the board of county commissioners of Bonner county; that after the election of plaintiff as chairman of the board of county commissioners of Bonner county on June 15, 1915, up to the time of the appointment and qualification of McBride as county commissioner of said county, the plaintiff acted as chairman of the board.
That immediately after the qualification of defendant McBride as commissioner, and at a regular meeting of the board, it was moved by Commissioner Hagman and seconded by Commissioner McBride that the action of the board in theretofore electing Commissioner Prichard chairman be reconsidered. Prichard refused to put the motion, whereupon it was put by Commissioner Hagman and carried by the vote of Hagman and McBride. It was thereafter moved by Commissioner McBride and seconded by Commissioner Hagman that the office of chairman be declared vacant. Prichard refused to put the motion, whereupon it was put by Commissioner McBride and the motion was carried by the affirmative vote of Hagman and McBride. It was then moved by Commissioner Hagman and seconded by McBride that McBride be elected chairman. Motion was put by Hagman and carried by the affirmative vote of Hagman and McBride. Thereafter the defendant McBride assumed to act and has continued to act as the chairman of the board of county commissioners of Bonner county.
This action was brought by appellant Prichard against McBride and Hagman to determine whether Prichard or McBride is entitled to legally hold the...
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Gowey v. Siggelkow
...of the next succeeding board. This view was adopted by the trial court, based upon the decision of this court in Princhard v. McBride, 28 Idaho 346, 154 P. 624. In that case the county commissioners, elected at the general election in November, 1914, organized on the second Monday of Januar......