State ex rel. Attorney General v. District Court of Fourth Judicial District

Decision Date14 June 1904
CourtNorth Dakota Supreme Court

Proceeding in mandamus on the relation of the Attorney General against the district court of the Fourth Judicial District; Glaspell, J.

Alternative writ quashed and proceeding dismissed.

Alternative writ of mandamus quashed, and the proceeding dismissed.

C. N Frich, Attorney General, Charles E. Wolfe, Aaron J. Bessie and Morrill & Engerud, for relator.

The court refused to entertain the application, hear proof and decide the motion on the ground that it had no jurisdiction to do so. Under such circumstances mandamus is the proper remedy. 19 Am. & Eng. Enc. of Law, 827.

It is doubtful if the order dismissing the motion is appealable; if it is, the remedy is neither "adequate" nor "speedy," and plaintiff would be entitled to mandamus. Rev. Codes, 6111.

The other remedy which will bar special proceedings must be one which "will set aside and annul the void proceedings of which the petitioner complains." State ex rel Enderlin State Bank v. Rose, 4 N.D. 319, 58 N.W. 514.

Plaintiff is entitled not only to have a specific, adequate legal remedy, but one competent to afford relief upon the very subject matter of application, and equally convenient beneficial and effective as by mandamus. California Pacific R. R. Co. v. Central Pacific R. R. Co. 47 Cal. 528.

Plaintiff claims the right to produce proof that the sheriff may be suspended, which right the trial court has denied. If an appeal lies from the order, it is neither adequate nor speedy, and plaintiff, if there exists good grounds, is entitled to his immediate removal. If appeal were the only remedy, the accused would retain office until fall and such delay would defeat the object sought and render the remedy useless. Under such circumstances the right to appeal never supersedes the special proceeding. State ex rel Bank v. Johnson, 79 N.W. 1081; In re North Alabama Development Co. 30 U. S. App. 646, 71 F. 764; State v. Murphy, 6 P. 840; State v. Judge, 52 La.Ann. 1275, 27 So. 697; People ex rel Pace v. Van Tassel, 43 P. 625; City of Huron v. Campbell, 53 N.W. 182; Terrall v. Greens, 31 S.W. 631; Merced Mining Co. v. Fremont, et al., 7 Cal. 130; T. & B. C. R. v. Iosca Circuit Judge, 7 N.W. 65.

The statute in dealing with the writ of certiorari uses the language "A writ of certiorari may be granted by the Supreme Court and District Court, when inferior courts etc. have exceeded their jurisdiction, and there is no appeal, nor any other plain, speedy and adequate remedy." Rev. Codes, 6098.

In dealing with mandamus, reference to an appeal is omitted. Rev. Codes, 6111.

The court held that an officer could not be removed by civil action even in the name of the state; that the proceeding by accusation under sections 7823-7838 is the exclusive method of removal. Section 197 of the constitution empowers the legislature to provide for the removal of officers not subject to impeachment, for misconduct, malfeasance, crime or misdemeanor. Under this authority the legislature enacted section 361, Rev. Codes, which provides that "All district, county, township, city, municipal, or state officers, not liable to impeachment, * * * shall be subject to removal from office for misconduct, malfeasance, crime or misdemeaor, etc." Rev. Codes, section 5741 prescribes the procedure by civil action. Rev. Codes section 7823, etc., prescribes the criminal procedure.

An officer, guilty of misconduct for which the statute and con-constitution say he ought to be removed, ought not to be permitted to remain in office until by the slow process of criminal law a judgment of conviction is obtained. The state, apart from the people of the local community, has an interest in the integrity and competency of the officers entrusted with the execution of the state laws. If it has such an interest it must have the means of protecting them. Chapter 24, of the Code of Civil Procedure was designed to enable the state by its attorney general to vindicate its authority independently of local citizens and local officials.

When a statute enumerates acts which shall be sufficient cause for removal, it is the same as if it said that the enumerated acts shall cause a forfeiture of the office. Commonwealth v. McWilliams, 11 Pa. 61; Commonwealth v. Walter, 83 Pa. 105; Royall v. Thomas, 28 Grut (Va.) 130; Bradford v. Territory, 37 P. 1061; Bradford v. Territory, 34 P. 66; State v. Allen, 5 Kan. 213; Graham v. Cowgill, 13 Kans, 114. Plaintiff's view is supported by Wishek v. Becker, 10 N.D. 63, 84 N.W. 590.

As to right of suspension pending a hearing, see, State ex rel Clapp v. Peterson, 52 N.W. 655; State ex rel Douglas v. Megaarden, 88 N.W. 412.


The peremptory writ should be directed to the District Court of the Fourth Judicial District and served upon Judge Lauder as the presiding judge of that Court. People ex rel v. Champion et al, 16 Johns. 61.

In case of the commissioners of highways of a township, the names might be ommitted and the commissioners of the town proceeded against, whoever they might be, and if as commissioners they disobey they would incur personal responsibility. State ex rel Grady v. Chicago M. & N. Ry. Co., 48 N.W. 243.

Directions are to a railroad company to put in a crossing without naming the officers having that duty in charge. Ex parte Parker, 131 U.S. 221, 9 S.Ct. 708; Williams v. New Haven, 68 Conn. 263; Glencoe v. People, 78 Ill. 382; Chicago v. Sansum, 87 Ill. 182; State ex rel Hastouck v. City of Milwaukee, 25 Wis. 122; State v. Bailey, 7 Iowa 390; Brown v. Railway Co. 53 N.J.L. 156; Boody v. Watson, 64 N.H. 162, 9 A. 794; Pegeam v. County, 65 N.C. 114; Thomas v. County, 66 N.C. 522; Enfaula v. Hickman, 57 Ala. 338; Davenport v. Lord, 9 Wall. 409, 76 U.S. 409, 19 L.Ed. 704; Wren v. Indianapolis, 96 Ind. 213; St. Louis County Court v. Sparks, 10 Mo. 117.

Where proceedings are commenced against too many defendants, it is not fatal to the application; the writ will be denied as to the unnecessary parties and issued as to the proper parties. Fisher v. Charleston, 17 W.Va. 628; State ex rel Clark v. Long, 37 W.Va. 266, 16 S.E. 578; People v. Civil Service Boards, 17 Abb. N. Cas. 64; Leeds v. City, 52 N.J.L. 332; State ex rel Smith v. Board of Sup'rs of Town of Leon, 28 N.W. 140.

The joinder of unnecessary parties defendant, is not grounds for dismissal or refusing relief as to proper parties. State ex rel Hill v. Superior Court of King Co. et al., 30 P. 82.

W. S. Lauder, and Purcell, Bradley & Divet, for respondent.

The alternative writ is fatally defective because of a misjoinder of parties respondent. 13 Enc. Pl. & Pr. 655; State ex rel Hill v. Superior Court of King Co. et al., 30 P. 82; People v. Yeates, 40 Ill. 126; State v. Township, 10 N.J.L. 292; Columbia County v. King, 13 Fla. 470; Bonner v. Adams, 65 N.C. 639.

Relator has another plain, speedy and adequate remedy at law and mandamus will not lie. He has two methods of procedure:

First. By appeal, writ of error, certiorari, to review the action of the trial court.

Second. Special stautory procedure for the removal of officers, Rev. Codes, 7838.

While it has been held that even where the right to appeal exists, such appeal may not be adequate on account of the circumstances and nature of the subject matter, but this case does not present such exceptional circumstances as to warrant invoking the doctrine. If the remedy by appeal is not adequate the remedy available to the relator under the provisions of section 7838. Rev. Codes, is in every sense plain, speedy and adequate. If there is any other remedy by which the same ultimate right may be obtained, mandamus will not lie. State ex rel Young v. Osborne, 83 N.W. 357; State v. Miley, 22 O. St. 534; State v. Court, 38 N.J.L. 182; Territory v. Cavanaugh, 3 Dak. 325; Railway Co. v. State, 25 Ind. 177; State ex rel Wolff v. Board of Supervisors of Sheboygan County, 29 Wis. 79; People ex rel O'Brien v. Adams, 22 P. 826.

Under chapter 24, the substitutionary remedy limits the relief that could be obtained thereunder to that formerly obtainable by quo warranto. The statute speaks its own construction, viz: "Remedies formerly attainable by the writ of quo warranto and proceedings by information in the nature of quo warranto may be obtained by a civil action under the provisions of this chapter. " The relief obtainable under this remedy is that of removing and evicting from office a usurper who has intruded into an office, or persists in holding or performing the functions of such office, after a vacancy has occured therein, and that the remedy cannot be invoked for removal for official misconduct. State ex rel Vance v. Wilson, 2 P. 828; People ex rel Thomas, etc. v. Goddard, 8 P. 927; Wishek, v. Becker, 10 N.D. 63, 84 N.W. 590.

A further reason why an action in the nature of quo warranto cannot be maintained is that such remedy can never be invoked when the causes for removal are prescribed by statute, if the statute also prescribed a special method of removal which is adequate. State ex rel Vance v. Wilson, 2 P. 828; Wishek v. Becker, 10 N.D. 63, 84 N.W. 590; State v. Hickson, 27 Ark. 398; Tarbox v. Sughrue, 12 P. 935; State ex rel Simpson v. Dowlan, 24 N.W. 188; State v. McLain, 50 N.E. 907.

The court has already acted and judicially determined and passed upon the question before it, and proceeded in accordance with such judicial determination and findings of the court to a final judgment. If the court were wrong in its determination it is but a judicial error, by reason of an erroneous interpretation of the law to be reviewed only by a writ of error or an appeal,...

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