State ex rel. Flynn v. Ellis

• Decision Date: 30 January 1940
• Docket Number: 8033.
• Citation: 98 P.2d 879,110 Mont. 43
• Parties: STATE ex rel. FLYNN v. ELLIS.
• Court: Montana Supreme Court

98 P.2d 879

110 Mont. 43

STATE ex rel. FLYNN v. ELLIS.

No. 8033.

Supreme Court of Montana

January 30, 1940

Appeal from District Court, Blaine County; C. B. Elwell, Judge.

Quo warranto proceeding by the State of Montana, on the relation of Alberta R. Flynn, against Ruby Schwalier Ellis, wherein relatrix sought to oust defendant from the office of county superintendent of schools. From a judgment ousting defendant from office, defendant appeals.

Affirmed in part, and reversed in part.

Jess L Angstman, of Havre, for appellant.

Geo. E Hurd, of Great Falls, for respondent.

ARNOLD Justice.

The relatrix, Alberta R. Flynn, respondent herein, and the appellant, Ruby S. Ellis, were rival candidates on the same party ticket for nomination to the office of county superintendent of schools at the primary election held in Blaine county in July, 1938. The appellant was nominated and became a candidate in the election held in November, 1938 whereupon she received the highest number of votes, was duly issued a certificate of election, and qualified by filing her oath of office and bond within the time required by law.

The respondent had been the incumbent in the above mentioned office for the two years previous to January 3, 1939, the date upon which the appellant entered upon the discharge of her official duties. On the desk in the office she found a note from respondent wishing her success and turning the key of the office over to her. Thereupon the respondent accepted a teaching position in the public schools of Chinook.

On or about February 23rd, 1939, the respondent filed a proceeding in quo warranto against the appellant, seeking to oust her from office, alleging that she did not possess the requisite qualifications, in that she did not hold a state certificate to teach, as required by section 950.1, Revised Codes. The matter was tried before the court, and among other findings it found that the appellant neither had such required certificate at the time of the primary election, at the time of the general election, nor at the time she entered upon the discharge of her duties, but that she had obtained such certificate on June 8th, 1939. Judgment was entered upon the findings, ousting the appellant from office, which judgment declared that the respondent was entitled to the office, inasmuch as the appellant was at all times ineligible to hold the office. The respondent since July 27, 1939, has discharged the duties of the office.

It is the contention of appellant that the respondent abandoned the office by her acts in turning over the key, quitting the office and accepting employment as a public school teacher. Appellant does not contend that she herself is entitled to the office. The respondent, on the other hand, contends that no vacancy existed in the office, as the election was void and no qualified person was elected, and, therefore, that she as a hold-over is entitled to the office.

That the acts of respondent constituted abandonment is well settled. In Rainwater v. State ex rel. Strickland, 237 Ala. 482, 187 So. 484, at page 487, 121 A.L.R. 981, at page 986, we find the following language: "'Abandonment is a species of resignation, but differs from resignation in that resignation is a formal relinquishment, while abandonment is a voluntary relinquishment through nonuser. Although the intention may be inferred, an office cannot be abandoned without an intention by the officer to relinquish it, and such a relinquishment is not produced merely by a temporary nonuser or neglect of duty. While, in order to constitute an abandonment of an office, it must be total, and under such circumstances as clearly to indicate an absolute relinquishment, the determination of the question whether an officer has abandoned an office is dependent upon his overt acts rather than upon his declared intention, and the law will infer a relinquishment where the conduct of the officer indicates that he has completely abandoned the duties of the office.' 46 C.J. 980, § 137.

"'The abandonment of an office may be indicated by the action of the incumbent in voluntarily surrendering it to another under a mistaken belief that the latter has been elected as his rightful successor.' 22 R.C.L. 560,§ 264; Attorney General ex rel. Moreland v. Maybury, 141 Mich. 31, 104 N.W. 324, 113 Am.St.Rep. 512, and note page 518.

"And if the incumbent, after competing with an opponent as a candidate in an election, is defeated, and by official action recognizes the election of his opponent and surrenders the office to him, he, as a matter of law, abandons the office and is estopped to invoke the court's jurisdiction to inquire into the validity of such election, either to oust his opponent or have himself reinstated in the office. Reg. v. Greene, 2 Q.B. 460, 6 Juris (1842) 777." See, also State ex rel. Klick v. Wittmer, 50 Mont. 22, 144 P. 648.

The respondent contends that had she known that the appellant did not possess the requisite qualifications she would not have abandoned the office to her. We believe this avails the respondent nothing as a justification. The provisions of the law for hold-overs are for the benefit of the office and not the officeholder. We observe, however, that although the respondent was defeated in the July primary election and was not a candidate in the November election, she made no serious effort to discover the facts of appellant's lack of qualifications until long after the appellant had commenced...