State ex rel. Bickford v. Fabrick

• Decision Date: 31 May 1907
• Citation: 112 N.W. 74,16 N.D. 94
• Parties: STATE ex rel. BICKFORD v. FABRICK, County Auditor.
• Court: North Dakota Supreme Court

16 N.D. 94

112 N.W. 74

STATE ex rel.BICKFORD

v.FABRICK, County Auditor.

Supreme Court of North Dakota.

April 25, 1907.

Rehearing Denied May 31, 1907.

Syllabus by the Court.

A mandamus proceeding is not an action under sections 6741, 6742, and 6743, Rev. Codes 1905, being a special proceeding. Under section 7229, Rev. Codes 1905, only actions are triable de novo in the Supreme Court, and this does not contemplate the trial de novo of special proceedings.

A statement of the case on appeal in a mandamus proceeding which does not contain specifications of error does not admit of a review of anything except the judgment roll.

Under the statute of this state providing that the term of office of the county superintendent of schools shall be two years, commencing on the first Monday in January following his election, and until his successor is elected and qualifies, a duly elected and qualified and acting county superintendent of schools continues such superintendent until his successor is elected and qualifies.

A county superintendent, lawfully holding over after the expiration of two years from his qualification as superintendent, and continuing to perform the duties of the office, is entitled to the compensation provided by law for the incumbent of such office.

Appeal from District Court, Ward County; C. J. Fisk, Judge.

Application by the state, on the relation of G. L. Bickford, for writ of mandamus against J. W. Fabrick, auditor of Ward county. Judgment for relator, and defendant appeals. Affirmed.C. N. Frich, Atty. Gen., Geo. A. McGee, State's Atty., and Joseph Denoyer, Asst. State's Atty., for appellant. Palda & Burke and Burke & Middaugh, for respondent.

SPALDING, J.

This is an appeal from a judgment of the district court of Ward county commanding the defendant, as auditor of such county, to draw his warrant to the relator for $3,997.46 as salary as superintendent of schools of that county for the years 1903 and 1904. The appellant evidently intended to have this court try the case anew; but as it is not an action, within the meaning of section 7229, Rev. Codes 1905, and his statement of the case contains no specifications of error, we cannot consider the evidence contained in the statement, but can only determine whether the judgment is sustainable from a consideration of the judgment roll. Section 7229, Rev. Codes 1905, only provides for the trial anew by the Supreme Court of actions. It does not include special proceedings, and there is a wide distinction between the two. This court has already held that contempt cases are not included in section 7229, and they are at least analogous to mandamus proceedings, and have often been held to be special proceedings. Township of Noble v. Aasen, 10 N. D. 264, 86 N. W. 742. This court has also held that a disbarment proceeding is a special proceeding. In re Eaton, 7 N. D. 269, 74 N. W. 870. The Code defines actions and special proceedings. Remedies in the courts of justice are divided into (1) actions and (2) special proceedings. Rev. Codes 1905, § 6741. An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the protection or enforcement of a right, redress or prevention of a wrong, or the punishment of a public offense. Rev. Codes 1905, § 6742. Every other remedy is a special proceeding. Rev. Codes 1905, § 6743. Chapter 41 of the Revised Codes of 1905 is entitled “Special Proceedings of a Civil Nature,” and includes under article 3 the subject of “Writ of Mandamus.”

It appears that the relator was elected, qualified, and acted as superintendent of schools of Ward county during the years 1901 and 1902; that at the general election held in November, 1902, in that county, one Flora J. Frost was elected to such office, and on or about the 5th day of January, 1903, filed with the county auditor her official oath and bond, with sufficient sureties, as required by law, and thereupon demanded of the relator the delivery to her of the office and supplies of said county superintendent of Ward county, which demand was refused by this relator, and neither the office nor the supplies pertaining thereto were ever delivered to her, and she never performed the duties of the office. About the 8th day of December, 1902, Bickford, the relator in this proceeding, on his own motion instituted in the district court of Ward county a statutory contest of election against said Frost, to which she duly made answer, and trial was had and judgment was rendered and entered by the district court of Ward county on the 2d day of November, 1903, adjudging that Flora J. Frost, the defendant in that proceeding, was not a qualified elector of Ward county at the time of holding the general election in said county in the month of November, 1902, and that she was not eligible to any office in the county and state at that time, and was not entitled to a certificate of election for the office of superintendent of schools of said county for the term beginning January 6, 1903, and the judgment permanently enjoined and restrained the county auditor of Ward county from issuing a certificate of election to her, and awarded the contestant in that proceeding, who is also the relator here, costs. From such judgment the defendant appealed, and her appeal was dismissed for want of prosecution.

Subsequent to the 6th day of January, 1903, Miss Frost made application for a writ of mandate directing this relator to deliver possession of the office, its records, and supplies to her, and on the 2d day of March, 1903, judgment was rendered and entered in the district court of Ward county whereby it was adjudged that a peremptory writ of mandamus issue out of said court directing the defendant in that action, the relator in this, to forthwith surrender and deliver to said Flora J. Frost said office. An appeal was perfected from said judgment to the Supreme Court, which appeal was on the 7th day of November, 1903, dismissed for want of prosecution.

It is so well settled that a mandamus proceeding is not the proper proceeding by which to determine who is entitled to an office or by which to contest an office that no citation of authorities is necessary. The mandamus proceeding of Miss Frost having been instituted, and...