State ex rel. Butler v. Callahan
| Decision Date | 28 January 1895 |
| Citation | 61 N.W. 1025,4 N.D. 481 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; McConnell, J.
Application upon relation of Robert Butler against J. F. Callahan, to compel defendant to surrender to plaintiff possession of the office of county superintendent of schools. From a judgment directing the issuance of a peremptory writ, defendant appeals.
Affirmed.
Benton & Amidon, for appellant.
Mandamus will not lie to try title to office. Merrill on Mandamus 143; McCrary on Elections, 322, Spelling Ext. Rel. 1572 1510; Peo. v. Barrett, 8 N.Y.S. 677. Title indicates election to the office and possession of the legal qualifications. Mandamus does not lie except to enforce a clear legal right. Merrill on Mandamus, 56; Meechem on Officers, 478; Peo. v. Board, 129 N.Y. 360; Peo v. Sheffield, 47 Hun. 481; Spelling Ext. Rel. 1574 1370, 1563. The weight of authority is, that a person must possess the legal qualifications for an office at the time of his election as well as at the time of the commencement of the term. Peo. v. Leonard, 14 P. 853; Privett v. Brickford, 26 Kan. 53; Demaree v. Scates, 32 P. 1123; Taylor v. Sullivan, 47 N.W. 802. Mandamus will not lie to instate a person in office who could be at once removed by quo warranto. Spelling Ext. Rel. 1790-1; State v. Clark, 8 At Rep. 509. Where the state calls upon an individual to show his title to office he must show the continued existence of every qualification necessary to the enjoyment of the office. Peo. v. Maywonn, 5 Mich. 146; State v. Glen, 14 N.W. 481.
Charles A. Pollock, for respondent.
Callahan was neither a de facto nor a de jure officer. He is a usurper, an intruder. He has no title to try. Supervisors v. O'Malley, 46 Wis. 63; High Ex. Rem. 76. Want of qualification is a defense, which can only be made use of when title is being tried. Att'y Gen'l v. McIver, 25 N.W. 499. The person holding the certificate of election is prima facie, the officer de facto and de jure. Peo. v. Kilduff, 15 Ill. 502; Peo. v. Head, 25 Ill. 287; Crowell v. Lambert, 10 Minn. 375; Atherton v. Sherwood, 15 Minn. 221; Supervisors v. O'Malley, 46 Wis. 61; DeArmond v. State, 40 Ind. 469; Parmenter v. State, 3 N.E. 387; State v. Board of Commissioners, 25 N.E. 10; O'Donnell v. Dusman, 39 N.J.L. 677; State v. Freeholders, etc., 35 N.J.L. 273-217; Peo. v. Hillard, 29 Ill. 419; Territory v. Shearer, 2 Dak. 346; Stone v. Small, 54 Vt. 498; Discoll v. Jones, 44 N.W. 726; Matsker v. Neally, 21 P. 206; Hoffman v. Mills, 18 P. 516.
The relator holding the certificate of election has the prima facie right to the office and is entitled to be recognized. Robinson v. Supervisors, 13 N.W. 622.
The dominating facts in this controversy, as they appear of record, may be stated as follows: The defendant was elected in 1892 to the office of county superintendent of schools of Cass County, and, having the requisite education certificate, duly qualified therefor, and entered upon the discharge of the duties of said office, and has ever since been an incumbent thereof, and now is exercising the functions of said office, and has possession of the office room in the court house, and the books and records of the office. At the election held in June, 1894, the defendant and relator were candidates, and the relator received a plurality of the votes cast for said office in Cass County; and pursuant to such election the relator received the proper certificate of his election, and subsequently, and on the 5th day of September, 1894, qualified for said office, by taking the official oath, and furnishing an official bond, which was approved. On the 6th day of October, 1894, the relator demanded of defendant the possession of the office room, and of the books and records appertaining to the office, which demand was refused. Upon the relator's petition, an alternate writ of mandamus issued out of the District Court. The facts embodied in the writ, so far as they are now material, have been already stated. Upon the return day the defendant appeared by counsel, and moved to quash the alternative writ, chiefly upon the ground that the writ does not state facts sufficient to entitle the relator to the writ. The motion to quash was denied, whereupon defendant filed his answer to the writ. The answer fails to deny any of the material averments of fact set out in the alternative writ, and none of such facts are controverted. As new matter, the defendant pleads, in substance, the following facts: That the relator, at the commencement of the official term in dispute, and when this proceeding was instituted, did not have or hold the prescribed educational certificate, or its equivalent, as required by Ch. 62 of the Laws of 1890, and especially as prescribed by section 34 of said chapter, which is as follows: "No person shall be deemed legally qualified for the office of county superintendent unless he or she holds a certificate of the highest county grade or its equivalent." The last paragraph of the answer reads: "That, under the statute of this state creating said office of county superintendent, it is made the right and duty of the incumbent of said office to hold the same, and discharge its duties, until a successor is duly elected and qualified, and that this defendant is now, and has at all times been since the first Monday in October, 1894, ready and willing to turn over said office, together with all its insignia and property, to such a successor, and that the reason why defendant has refused, and still refuses, to turn over said office to the relator herein is that said relator is not now, and has not at any time since long prior to said first Monday in October, 1894, been qualified to hold said office, or discharge the duties thereof." To the defendant's answer the relator interposed a general demurrer, for insufficiency. The trial court sustained the demurrer, and, defendant having elected to stand upon the averments of his answer, judgment was entered below directing the peremptory writ to issue. In this court, it is claimed by the defendant that the trial court erred in denying defendant's motion to quash the alternative writ, and also erred in sustaining the demurrer to the answer.
As has been seen the alternative writ avers, in effect, that the relator, after being elected, received the official certificate of election, and qualified for the office pursuant to law, and subsequently demanded possession of the office and its records, and possession was refused. These facts being admitted by the motion to quash the writ, the question is presented whether such facts alone are sufficient to entitle the relator to the peremptory writ admitting him into the office. It will be observed that many facts which are vital, as affecting the relator's ultimate right or title to the office, are not set out in the alternative writ. Relator fails to aver that he is of full age, or that he is a resident of Cass County, or citizen of the United States, or of North Dakota. Nor does he allege that he possesses the prescribed educational certificate. If the omitted averments of fact above mentioned, or any of them, are essential, and must be alleged, before the writ can be invoked to instate in office a candidate who has been elected, and has qualified and demanded the possession, then the motion to quash should have been granted. We are clear that such omitted averments of fact are neither necessary nor proper in a case like this. The writ of mandamus issues to place a claimant of an office in possession, who holds the prima facie right to take possession; and, as will be seen hereafter, the prevailing rule is that a candidate who is elected, and who qualifies and properly demands possession, has the prima facie right of possession, as against a recalcitrating incumbent, who holds over after his term expires. It is quite true, however, and the doctrine is elementary, that the writ will not issue, either to admit into office, or try conflicting title thereto, where the incumbent is in the exercise of official functions, de facto, and under color of right. See authorities collected in 14 Am. & Eng. Enc. Law, p. 202, note 1; McCrary, Elect. § 322. This rule is invoked by counsel in defendant's behalf. Counsel argues that defendant is in the exercise of official functions, de facto, and under color of law, i. e. under § 17, Ch. 62, Laws 1890, which provides that the county superintendent shall hold his office for a term of two years, "and until his successor shall have been elected and qualified." But the decided weight of authority is against the position of counsel upon this point. Merrill, Mand. § 143, lays down the rule as follows: "So the writ will issue if the incumbents are only holding over until their successors are elected or qualified;" citing in note 5, State v. Freeholders of Hudson Co., 35 N.J.L. 269, and other cases. This precise question was elaborately discussed, and ruled against the defendant's contention, in Supervisors v. O'Malley, 46 Wis. 35, 50 N.W. 521, which case is very instructive, as it discusses many of the principles of law which apply with equal force to the case at bar. The authorities cited below from the States of Illinois and Minnesota are directly in point, also upon this feature of the case. In Supervisors v. O'Malley, the court uses this language: "And if a refusal to deliver the possession for a day or a week, or two weeks, constitutes him treasurer de facto, so as to compel the party declared elected to proceed by quo warranto to oust him before any action can be had to compel him to deliver the books and papers and money belonging to such office, then the whole effect and force of a...
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