Rhodes v. Love

• Decision Date: 23 November 1910
• Citation: 69 S.E. 436,153 N.C. 468
• Parties: RHODES v. LOVE.
• Court: North Carolina Supreme Court

69 S.E. 436

153 N.C. 468

RHODES v. LOVE.

Supreme Court of North Carolina

November 23, 1910

Appeal from Superior Court, Lincoln County; O. H. Allen, Judge.

Mandamus by J. M. Rhodes against Edgar Love. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

This is an action in which the plaintiff alleges that he is the duly elected and qualified treasurer of the "Lincolnton Graded School Committee," a corporation created by Private Laws 1895, c. 3, as amended by Private Laws 1907, c 170; that the defendant has the books, documents, and papers of the said office in his possession and has refused, after demand, to deliver them to him. The plaintiff, therefore prays that a mandamus issue to compel the defendant to comply with said demand. The defendant, in his answer, denies the material allegations of the complaint, except as to the possession of the books and papers, and especially denies that the plaintiff has been duly elected and qualified as treasurer of said school committee, or that he now has any right to the said office or the books, documents or papers belonging thereto, and he avers, on the contrary, that he is the rightful incumbent of the office and entitled to exercise its functions and perform its duties and to have the possession of said books, documents, and papers. The defendant moved to dismiss the action upon the ground that the plaintiff's remedy, if he has any right to the office as alleged, is by quo warranto and not by mandamus. The court dismissed the action and the plaintiff appealed.

W. A Self, for appellant.

L. B Wetmore, C. E. Childs, and Burwell & Cansler, for appellee.

WALKER J. (after stating the facts as above).

We think the plaintiff has misconceived his remedy. It is evident, from the pleadings, that this is, in substance, an action by two contesting claimants to determine the title to an office and mandamus is not the proper proceeding in such a case. Howerton v. Tate, 66 N.C. 231; Brown v. Turner, 70 N.C. 93; Ellison v. Raleigh, 89 N.C. 125; Burke v. Commissioners, 148 N.C. 46, 61 S.E. 609. If an office is vacated and the rightful claimant seeks to be inducted into it by the body having jurisdiction of the matter, mandamus will lie to enforce his right, but where the controversy is between two rival claimants, the preferential right of the plaintiff must not only be clear, but it must be so adjudged in an action of quo warranto, or rather in an action in the nature of quo warranto, and especially is this true where the defendant is in possession of the office under a claim of right in him to hold it and exercise its functions or perform its duties. Although the proceeding may be in the name of the state upon the relation or complaint of a private party, it is none the less personal as to the parties claiming the office; the issue between them being the right to the same. The authorities sustaining this view are abundant. 32 Cyc. 1420, and notes. The question is expressly decided in Ellison v. Raleigh, 89 N. C., at page 129, where this court, citing and approving Dillon on Municipal Corporations, §§ 679 and 680, says: "A mandamus is appropriate when there is no usurpation by another, and the end sought is to compel those, who ought to admit and refuse to admit the person entitled by law to fill the place, to perform their duty in this behalf; and the writ may be granted, said Mr. Willcock, 'when quo warranto does not lie, although the office be already full, as otherwise, in many cases, the applicant would be without remedy.' *** 'The adjudged cases in this country agree that quo warranto, or an information or proceeding in the nature of a quo warranto, is the appropriate remedy, when not changed by charter or statute for an usurpation of a municipal franchise, as well as for unauthorized usurpations and intrusions into municipal offices'; and the author proceeds: 'If another is commissioned and in actual discharge of the duties of the office, an adverse claimant to the office is not entitled to a mandamus, but must resort to quo warranto.' The wrongful occupant must, however, have entered under color of authority and not be a mere usurper, in the restricted sense of that term, to put the rightful claimant to the necessity of a resort to this remedy."

It is expressly declared by our statute (Pell's Revisal 1905, § 827) that "an action may be brought by the Attorney General in the name of the state, upon his own information or upon the complaint of any private party, against the parties 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." Referring to this provision of the law, this court, in Ellison v. Raleigh, said further: "The statute provides in subsequent sections for the fullest relief to the rightful claimant against an unlawful intrusion, and thereby dispenses with the need of recourse to other process, unless those required to induct, still refuse to do so, after the amotion of the intruder by the judgment of the court; and then they may be compelled to proceed in the discharge of their duties. As the statutory remedy is ample, so where it can be had and made effectual, it is the only mode of deciding the conflicting claims to office by an adjudication between the contesting parties." It was held in Lyon v. Commissioners, 120 N.C. 237, 26 S.E. 929, that where a plaintiff seeks the recovery of an office occupied by another or, as is sometimes said, an office that is full, his remedy is by civil action in the nature of quo warranto, and that mandamus is recognized as a peculiarly appropriate remedy for the correction of an improper amotion from an office and to...