Rider v. Brown
| Decision Date | 27 January 1893 |
| Citation | 32 P. 341,1 Okla. 244,1893 OK 8 |
| Parties | RIDER v. BROWN et al., County Commissioners. |
| Court | Oklahoma Supreme Court |
Error to district court, Canadian county; A. J. Seay, Judge.
Mandamus by Charles Rider against George F. Brown and others, county commissioners, to compel defendants to issue to plaintiff a certificate of election to the officer of register of deeds. From a judgment in favor of defendants, plaintiff brings error. Affirmed.
Simpson & Smedly, for plaintiff in error.
Kirkpatrick & Blake, for defendants in error.
On the 11th day of March, 1891, the plaintiff in error filed his complaint in the office of the district court of Canadian county, wherein he represented that he was a candidate for the office of register of deeds of said county at the special election held therein on the 3d day of February, 1891, and that at said election he received the largest number of votes cast for any candidate for said office. He further represented that the then county commissioners of said county, Spencer W. Johnson, George F. Brown, and Thomas Jenson, canvassed the votes cast at said election on the 19th day of February, 1891, with the above result; and that he requested said board of county commissioners to deliver to him a certificate of said election, which request was denied and that the term of office of said commissioners expired on the 23d day of said month. The plaintiff further alleged that on the 23d day of said month the above named defendants were qualified as county commissioners of said county, and that on that day he requested said defendants to deliver to him his certificate of election as register of deeds of said county which request was denied, whereupon he prayed that a writ of mandamus be issued and directed to said defendants commanding them to issue to him a certificate of election to the office of register of deeds of Canadian county, and to grant to him an early opportunity to file his official bond. Thereupon an order was issued to said defendants, which after reciting the above facts, commanded them to show cause before the court at El Reno, Canadian county, on the 7th day of April, 1891, why they had not issued the said certificate. The defendants thereupon filed several motions, and, among others, moved the court "to quash the pretended writ herein granted, for the reason that neither the same, nor the petition on which the same was granted, stated a cause of action against the said defendants." The order above stated was in no sense a writ. It was neither signed nor sealed by the clerk, and was never intended to be a writ, but was a preliminary order to enable the defendants to show why a writ should not be issued. The motion to quash was in the nature of a demurrer to the sufficiency of the affidavit and of the order, and was so treated by the court, and was so treated on the argument of the case, and will be so treated in this opinion.
Section 5064 of the Statutes of the Territory is as follows: "The writ shall be issued upon affidavit and motion, and shall be attested and sealed, and made returnable, as the court shall direct." But this statute does not prohibit the court, in the first instance, from inquiring into the facts, so as to determine whether any writ should be issued. A rule to show cause why a writ should not issue serves all the purposes, and performs all the functions, of an alternative writ, and its sufficiency, and that of the affidavit, may be tested by a demurrer or motions to quash. The demurrer admitted the correctness of the facts stated, but simply denied their sufficiency. Clearly, if no cause of action was stated against the defendants, the proceedings should have been dismissed, unless the plaintiff asked leave to amend; and the record is silent upon that subject. The presumption, then, is that the plaintiff proposed to stand by his affidavit and rule to show cause as containing all the essential elements of a good complaint. At the April term of said court, for the year 1891, the aforesaid matter came up for hearing before said court, and, on the hearing, the following order was entered: "The court, after being fully advised in the premises, finds the issues for the defendants, and refuses to issue the peremptory mandamus, commanding said defendants to do anything prayed for in the plaintiff's petition, and does adjudge that defendants have and recover of the plaintiff their costs in this suit paid out and expended, and have execution therefor,"--to all of which the plaintiff excepted, and from which he appealed to this court.
It does not appear from the record on file, nor from the brief, on what precise point the case turned. Several questions arise among others this one: Had this plaintiff a right of action in his own name against the defendants? The practice has been long established in mandamus actions that the action should be brought in the name of the sovereign power, on relation or complaint of the party in interest. Maxw. Code Pl. p. 324; High, Extr. Rem. §§ 1,531. In the United States this writ has lost its prerogative features, but it is still classed as an extraordinary writ; and, in form and name, the proceedings are somewhat in the nature of a criminal action, and are in the name of the sovereign power. Com. v. Dennison, 24 How. 66; Kendall v. U. S., 12 Pet. 527. This action was brought to obtain possession of a certificate of election as a preliminary step to the obtaining the possession of an office. By it the right to the office cannot be tried. But quo warranto is a writ by which the right to the office may be tested. In this territory an information is substituted therefor. That has to be commenced in the name of the territory, on the relation of the party claiming the office. The practice in Indiana (whence our Statutes and Code came) has been...
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