Smith v. Reid

• Decision Date: 30 August 1932
• Docket Number: 7408
• Citation: 60 S.D. 128,244 N.W. 81
• Parties: ELLIS O. SMITH, Respondent, v. ALEX REID, Appellant.
• Court: South Dakota Supreme Court

60 S.D. 128

244 N.W. 81

ELLIS O. SMITH, Respondent,

v.

ALEX REID, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. L.L. Fleeger, Judge #7408—Order Granted L.E. Waggoner, T.M. Bailey, Sioux Falls, SD Attorneys for Appellant. Odean Hareid, Blaine Simons, Sioux Falls, SD Attorneys for Respondent. Opinion Filed Aug 30, 1932

CAMPBELL, Presiding Judge.

Appellant, Alex Reid, has resided continuously in the City of Sioux Falls in this state (and formerly in Dakota Territory) since 1883, excepting for one interval of temporary absence in 1885. He was elected to the city council in 1890, and thereafter re-elected and served continuously as a member of that body until 1901. Thereafter he was superintendent of streets of said city for a period of approximately eighteen years, Prior to April, 1923, the City of Sioux Falls had adopted the commission form of government, and in April, 1923, respondent, Smith, was elected city commissioner for the term of five years. In April, 1928, respondent, Smith, was a candidate for re-election, and appellant, Reid, among others, was a candidate against him, and ultimately defeated Smith for the office by approximately one hundred votes. Reid, being declared elected city commissioner as the result of the 1928 election, qualified and took possession of the office; Smith surrendering the same without contest, protest, or question.

Appellant, Reid, was born in Scotland in 1856 and came to the United States in 1880, and to Minnehaha County, Dak., in 1883.

On December 14, 1931, respondent, Smith, claiming recently to have ascertained that Reid had never become a citizen of the United States, made demand in writing upon Reid for the surrender of the office of city commissioner in the following form:

“To Alex Reid, Sioux Falls, South Dakota.

“As the duly elected and qualified commissioner of the City of Sioux Falls, South Dakota, and whose place on the City Commission; you have usurped and now unlawfully hold because you are not a citizen of the United States, I herewith demand that you forthwith vacate said office and return it to me as its rightful and lawful incumbent.

“[Signed] Ellis O. Smith.

”Dated December 14, 1931.”

—it being the position of Smith that Reid, as an alien, was disqualified to hold the office and that he (Smith) held over from his election in 1923. Reid refusing to surrender the office upon such demand, Smith instituted proceedings against him by civil action in the nature of quo warranto in the circuit court of Minnehaha County, which resulted in findings, conclusions, and judgment against Reid and in favor of Smith. The conclusions of law of the learned trial court were as follows:

“1. That the petitioner, Ellis O. Smith, was duly elected City Commissioner of the City of Sioux Falls, Minnehaha County, South Dakota, the 24th day of April, 1923, and that he duly qualified for such office and entered upon the duties of the same and continued to hold the said office and discharge the duties thereof until the same were assumed by the said Alex Reid, as set out in the findings herein.

“2. That by reason of the fact that the said Alex Reid was never and is not now a citizen of the United States he was disqualified to hold the office of City Commissioner, and the said Ellis O. Smith was entitled to hold the said office until his successor was duly elected and qualified and he is now entitled to hold the said office.

“3. That the plaintiff, Ellis O. Smith, is entitled to judgment ousting the said Alex Reid from the said office of Commissioner of said City of Sioux Falls, and requiring the said Alex Reid to surrender said office, its powers, privileges, franchises and emoluments, to the said plaintiff and petitioner, Ellis O. Smith.”

The judgment, after the customary preliminary recitals, provided that it was “ordered, adjudged and decreed that the Petition for a Writ of Quo Warranto herein should be, and the same is hereby granted; and the said defendant and respondent Alex Reid is hereby ousted and excluded from the said office of Commissioner of the City of Sioux Falls, its powers, privileges, franchises and emoluments. And it is further ordered and adjudged that the plaintiff, Ellis O. Smith, is, and has been since the 24th day of April, 1923, entitled to the said office by virtue of the election alleged in the petition of Ellis O. Smith for a Writ of Quo Warranto, and entitled to the franchises, privileges and emoluments thereof; and that he have and recover of the defendant Alex Reid, the sum of $_____ as costs in this action, to be inserted by the Clerk of this Court.”

From that judgment, appellant, Reid, has appealed to this court. Prior to the appeal, Reid moved in the court below “that proceedings be stayed, pending presentation of motion for new trial and appeal, and that the court fix the amount of the undertaking under the provisions of section 3158, RC 1919.”

The statutory provision invoked by such application below reads as follows:

“If the judgment appealed from direct the doing of any particular act or thing, and no express provision is made by the statute in regard to the undertaking to be given on appeal therefrom, the execution thereof shall not be stayed by the appeal therefrom unless an undertaking be entered into on the part of the appellant, in such sum as the court, or presiding judge thereof, shall direct, and by at least two sureties, to the effect that the appellant will pay all damages which, the opposite party may have sustained by not doing the particular act or thing directed to be done by the judgment appealed from, and to such further effect as such court or judge shall in his discretion direct.”

Section 3158, RC 1919.

The learned trial judge, entertaining the view that he had no power or authority to stay proceedings pending appeal, denied the application, and in that connection he said:

“The court is of the opinion that under the case of Fylpaa v. Brown County, 62 N.W. 962, and under In re Mee, the judgment in this case would be self-executing, under the authority of the above named cases, and would not be one of the cases where our statutes contemplate a stay of execution could be granted, and that this court has no discretion in the matter. ...

“I think I might say to you men that if the court felt that it had discretion to stay proceedings pending an appeal, it would grant a stay of proceedings.”

Thereafter appellant promptly perfected his appeal from the judgment and immediately moved in this court, upon order to show cause, for an order of this court “staying all proceedings in the above entitled matter pending the court’s determination upon the merits of the appeal hereinbefore perfected, and preserving the status quo therein until said appeal shall be finally determined.” Such application to this court was resisted by respondent, and the matter, having been submitted by oral argument of counsel and memoranda briefs, is now for our disposition.

Appellant invokes the action of this court in the premises upon two theories:

First, appellant maintains that the learned trial judge should have fixed the amount of undertaking to stay proceedings pending appeal pursuant to section 3158, RC 1919, and, having refused so to do in the belief (mistaken, as appellant contends) that he had no such power, this court should act in the matter pursuant to section 3163, RC 1919, reading in part as follows:

“When the court, or the judge thereof, from which the appeal is taken or desired to be taken, shall neglect or refuse to make any order or direction, not wholly discretionary, necessary to enable the appellant to stay proceedings upon an appeal, the supreme court, or one of the judges thereof, shall make such order or direction.”

Secondly, and independently of his first contention, appellant urges that this court, in aid of its appellate jurisdiction, has an inherent power in all cases appealed to it to stay proceedings be low and in its discretion to make any and all orders or issue any writs necessary to preserve the status quo of the parties pending the appeal, and that the circumstances are such that this court, as a matter of discretion, ought to make such order in this case.

If either position of appellant is well taken he is entitled to prevail on the present motion, and any determination of the validity of the other position becomes unnecessary. Inasmuch as we are of the opinion that appellant is right in his second contention, the present application is ruled by that view, and we need not undertake to determine in this case the rather serious question of whether or not the court erred in its pronouncement as to a “self-executing judgment” in the Fylpaa case.

Thus specifically refraining from deciding the first point raised by appellant, we turn to the consideration of his second contention. We believe that appellant is right in his position that this court has an inherent power, in furtherance of the effective exercise of its appellate jurisdiction, to preserve the status quo of parties litigant pending appeal. Our statutes with reference to stay pending appeal relate entirely to the power and authority of the trial court. Over and above that power, there is, we think, the inherent discretionary power of the appellate court, above referred to, which power the Legislature has never attempted to limit, if indeed it could be subject to legislative impairment. This court specifically announced the existence of that power in Gamet v. Allender (1926) 208 N.W. 782. In Mee v. Hirning (1922) the court tacitly assumed the existence of such power without affirmatively declaring it, but upon review of the facts held that it ought not there to be exercised. In Brookfield v. McClenahan (1930) 234 N.W. 19, we again assumed, without affirmatively deciding, the existence of the power, but held that we would not exercise it in a case where supersedeas might...