Sinclair v. Young

• Decision Date: 13 March 1902
• Citation: 100 Va. 284,40 S.E. 907
• Parties: SINCLAIR et al. v. YOUNG et al.
• Court: Virginia Supreme Court

40 S.E. 907

100 Va. 284

SINCLAIR et al.

v.YOUNG et al.

Supreme Court of Appeals of Virginia.

March 13, 1902.

OFFICERS—PROPERTY OF office—delivery

to SUCCESSORS — REMEDIES — MANDAMUS — QUO WARRANTO—DETINUE—COUNTY ELECTORAL BOARD—APPOINTMENT BY LEGISLATURE — AMENDMENT TO code — vested RIGHTS—TERM OF OFFICE.

1. An action of detinue is not the proper remedy for the recovery by public officers of property pertaining to their office and withheld by their predecessors.

2. Where public officers, at the expiration of their term, refuse to deliver property pertain ing to the office to their successors, mandamus will lie to compel such delivery, though in determining its possession the title to the office is incidentally questioned.

3. Where successors to a public office seek to compel their predecessors to deliver the property pertaining to the office, quo warranto is not the exclusive remedy, though the title to the office is involved, since Code, c 145, relating to quo warranto, does not by implication abolish the established procedure that title to office can be tried by mandamus.

4. Where the general assembly fails to elect an electoral board for a county, as prescribed by Code, § 64, a resolution at an extra session, supplying the omission by naming the board, is not an amendment of the Code, within Const, art. 5, § 15, requiring that an act or section amended shall be re-enacted and published at length.

5. The resolution of the general assembly February 15, 1901, appointing an electoral board of Warwick county, did not deprive the then incumbents of any vested rights, as the members of electoral boards are not constitutional officers, and are within the legislative control.

6. Code, § 64, as amended by Acts 1899-

1900, p. 843, providing that the terms of office of members of existing electoral boards shall terminate on April 1, 1900, or on the qualification of members elected at that session of the general assembly, merely enables incumbents to hold over until the qualification of their successors; and hence, the assembly having named the successors at an extra session in

1901, the members of the new board were entitled to qualify immediately.

Error to circuit court, Warwick county.

Petition by John A. Young and others, as members of the electoral board of Warwick county, against Thomas A. Sinclair and others, for mandamus to compel the surrender of certain books, papers, etc., belonging to the board. There was an order awarding the writ, and complainants bring error. Affirmed.

Causey, Jones & Woodward, for plaintiffs in error.

O. D. Batchelor and J. F. Hubbard, for defendants in error.

WHITTLE, J. At its regular session, 1899-1900, the general assembly of Virginia failed to elect an electoral board for the county of Warwick, as prescribed by section 64 of the Code, as amended (Acts 1899-1900, p. 843).

To remedy the omission, at the extra session of 1901, the following joint resolution was passed:

"Whereas, the general assembly, during its session of 1899-1900, failed to elect members of the electoral board of Warwick county; therefore, be it,

"Resolved, by the senate (the house of delegates concurring), that J. C. Curtis, John A. Young and J. H. Ham, qualified voters and residents of the county of Warwick, be, and they are hereby elected, members of the electoral board of Warwick county.

"This resolution shall be in force from its passage." Acts 1901, p. 261.

The resolution was approved February 15, 1901.

The electoral board for that county, prior to the election of the new board, was composed of John A. Young, J. F. Bornewell, and Thomas A. Sinclair, whose term of office expired April 1, 1900, but who were to hold over after that date "until their siiceessors were regularly elected and qualified." The members of the new board forthwith qualified and organized February 18, 1901, by electing J. H. Ham, chairman, and John A. Young, secretary. At that meeting, an order was made directing Thomas A. Sinclair, the secretary of the former board, to deliver all books and seal, and other papers in his custody pertaining to the electoral board of Warwick county, to John A. Young, secretary of the new board. Sinclair refused to comply with that order, and thereupon the members of the new board presented a petition to the judge of the circuit court of Warwick county, In vacation, praying for a peremptory writ of mandamus, commanding and requiring Thomas A. Sinclair and J. F. Bornewell to surrender and deliver up to petitioners the record book, seal, and other papers belonging to the electoral board, likewise to altogether desist from the further exercise of the functions of that office. The case was heard April 9, 1901, on the petition and exhibits, the demurrer and answer of the defendants, and upon an agreed statement of facts, in addition to the documentary evidence exhibited with the pleading; whereupon the circuit judge awarded a peremptory writ of mandamus in accordance with the prayer of the petition.

The case is here upon a writ of error to that order.

A number of questions were raised and discussed, many of which have been settled by decisions of this court

It was insisted that the proper remedy for the recovery of the articles referred to was an action of detinue. No authority was adduced to sustain that contention, and no case is recalled In which that form of action has been resorted to by a board of public officers to recover public property unlawfully withheld by their predecessors in office.

The action is employed to recover, in specie, personal chattels from one in possession, who unlawfully detains them from the real owner, or from one having a special property therein, with damages for the detention. The judgment is in the alternative, that the plaintiff recover the property sued for, or its value, if the specific chattel cannot be returned.

The money value of official books, papers, and seal would prove a poor equivalent for specific articles, indispensable to the discharge of official functions. The alternate judgment, too, would be for the bene"t of one having no personal interest in the subject-matter. It can hardly be affirmed of such a proceeding that it would afford a complete and adequate remedy in the case under consideration.

A public officer has no property rights in the books, seal, and papers pertaining to his office. He has a right to their custody and use only during his term, at the expiration of which it is his duty to deliver such articles to his successor. The duty is ministerial, and, should he neglect or refuse to discharge it, the performance may be compelled by mandamus. Peters v. Auditor, 33 Grat 368; Childrey v. Rady, 77 Va. 518; Clay v. Ballard, 87 Va. 787, 13 S. E. 262.

It was further contended that mandamus, in this case, was employed to try title to the office, which, it was argued, could only be done by quo warranto. It is true that the title of the defendants in error to the office was, incidentally, drawn in question, for. In determining who was entitled to the possession of the record book and other property belonging to the electoral board, it was essential to decide, and the circuit judge did decide, who were the legally constituted members of that board.

This question, doubtless, could have been litigated by quo warranto; but that remedy is not exclusive, and has not been the usual remedy resorted to in that class of eases. Indeed, if the contention of counsel for plaintiff in error is correct that detinue is the proper remedy to recover the books and seal, and quo warranto to try title to the office, neither can be said to afford an adequate remedy in a case which involves the...