State ex rel. Foughty v. Friederich

• Decision Date: 18 April 1961
• Docket Number: No. 7942,7942
• Citation: 108 N.W.2d 681
• Parties: STATE of North Dakota ex rel. Frank E. FOUGHTY, Petitioner, v. Ray R. FRIEDERICH, Respondent.
• Court: North Dakota Supreme Court

Page 681

108 N.W.2d 681

STATE of North Dakota ex rel. Frank E. FOUGHTY, Petitioner, v. Ray R. FRIEDERICH, Respondent.

No. 7942.

Supreme Court of North Dakota.

April 18, 1961.

Syllabus by the Court

1. The power vested in the Supreme Court by Section 87 of the North Dakota Constitution to issue original and remedial writs is a discretionary power which may not be invoked as a matter of right. The Court will determine for itself in each case whether that particular case is within its jurisdiction.

2. The phrase 'until his successor is duly qualified' as used in Section 104 of the North Dakota Constitution has reference to a successor chosen in the manner provided by the Constitution for filling the office by a regular incumbent.

3. The North Dakota Constitution does not declare or define what shall constitute a vacancy in a constitutional office nor does it confer upon the legislature the power to do so.

4. No vacancy occurs in an office while it is being held by one occupying it under a tenure prescribed by the Constitution unless the Constitution so provides.

5. Under the provision in Section 104 of the North Dakota Constitution that 'the term of office of a judge of the district court hereafter elected shall be six years from the first Monday in January succeeding his election and he shall hold his office until his successor is duly qualified,' the death of a judge-elect before he has qualified creates no vacancy that warrants an appointment of a successor to the incumbent judge who holds his office until his successor is elected and qualified.

Melvin Christianson, Minnewaukan, for petitioner.

John C. McClintock and Conrad J. Ziegler, Rugby, for respondent.

MORRIS, Judge.

The relator, Frank E. Foughty, presented to this court an application for leave to file an information in quo warranto, supported by the affidavit of the relator and a proposed information. The application and its supporting papers indicate that the relator, Foughty, claims to be entitled to the office of Judge of the Second Judicial District of the State of North Dakota which office is now in the possession of Ray R. Friederich whom we will refer to as the respondent and who claims to be the lawful incumbent of the office.

This Court issued its order, directed to Friederich, to show cause why the request of the relator should not be granted. Upon the return day prescribed in the order, the respondent appeared in person and by counsel and filed a return. In this return it was stated that the information might be construed as a stipulation of facts in this proceeding, but respondent denies the application of statutes upon which relator relies and the legal conclusions based thereon, and asserts that under the admitted facts he, and not the relator, is the legal incumbent of the contested office and has the right and lawful authority to hold the same until his successor has been duly elected and qualified. In view of the record thus presented, if the information states a case warranting our assumption of jurisdiction, we will proceed to a determination of the issues submitted and decide who is entitled to hold the contested office.

At the November general election of 1960, Roland A. Heringer was elected a judge of the Second Judicial District for the term to commence on the first Monday in January 1961. The then incumbent to the office was Asmundur Benson whose term would normally expire on January 2, which was the first Monday in January. After being declared elected but before qualifying for the office, Mr. Heringer died on December 23, 1960. Before the term of Judge Benson expired, he resigned, and the then Governor of the State, John E. Davis, appointed the respondent, Ray R. Friederich, to fill the vacancy created by the resignation of Judge Benson, which appointment recited that the appointee would serve until his successor was elected and qualified. The respondent took possession of the office pursuant to the appointment by Governor Davis and continues its occupancy.

Governor William L. Guy had succeeded Governor Davis to the governorship of the State on the first Monday of January 1961. Ten days thereafter and on January 13, 1961, Judge-elect Heringer having failed to qualify within the time prescribed by Section 44-01-03 NDCC, Governor Guy declared that a vacancy existed in the district judgeship. On February 21, 1961 Governor Guy appointed the relator, Foughty, to fill the declared vacancy. The relator filed an oath of office pursuant to the appointment and now contends that he is the duly appointed and qualified Judge of the Second Judicial District and as such is the rightful holder and is entitled to possession of the office.

Lest the legal issues before us be obscured by the fact that the respondent, Friederich, is the appointee of former Governor Davis, and that the relator, Foughty, is the appointee of present governor, Governor Guy, we would state at the outset that Judge Benson's resignation created a vacancy, under the provisions of Section 44-02-01 NDCC, which Governor Davis was authorized to fill under the provisions of Section 44-02-03 NDCC, which provides that:

'Any vacancy in a state or district office, except in the office of a member of the legislative assembly, shall be filled by appointment by the governor.'

The respondent qualified by filing his oath of office on December 31, 1960. He thereby became the incumbent of the office from which Judge Benson had resigned. He was endowed with all the rights of the office formerly held by Judge Benson, including the right to hold over until his successor was qualified. He became possessed of the same tenure of office as Judge Benson would have had if he had not resigned.

Section 87 of the North Dakota Constitution vests in the Supreme Court power to issue original and remedial writs, including writs of quo warranto. This is a discretionary power which may not be invoked as a matter of right. As to quo warranto proceedings, it is limited to cases involving the sovereignty of the State, its prerogatives or franchises, or the liberty of a citizen, and this Court will determine for itself in each case whether that particular case is within its jurisdiction. State ex rel. Lyons v. Guy, N.D., 107 N.W.2d 211; State ex rel. Johnson v. Myers, 74 N.D. 678, 19 N.W.2d 745; State ex rel. Moore v. Archibald, 5 N.D. 359, 66 N.W. 234.

The general nature of this controversy is one that falls within the power vested in the Supreme Court by Section 87 of the Constitution.

Frank E. Foughty is a private relator who has a personal and special interest in the controversy. He has made an application to the Attorney General of the State to institute these proceedings. The Attorney General refused to proceed, but gave his permission to the relator to institute the requested proceedings, as relator, in the name of the State of North Dakota. It is clear that the subject matter is one over which we should take jurisdiction. State ex rel. Erickson v. Burr, 16 N.D. 581, 113 N.W. 705.

The respondent having stipulated and conceded in his return that the facts set forth in the relator's application, affidavit and proposed information are true, the issues presented are entirely those of law and we will proceed to determine not only whether the information should be filed, but also whether the relator must prevail or fail in his challenge to the right of the respondent to retain the office in question under the admitted facts and the law applicable thereto.

The district judge is a constitutional officer. We therefore go to the Constitution to ascertain whether it prescribes his term and tenure of office. Section 104 of the Constitution as originally adopted provided:

'The state shall be divided into six judicial districts, in each of which there shall be elected at general elections, by the electors thereof, one judge of the district court therein, whose term of office shall be four years from the first Monday in January succeeding his election and until his successor is duly qualified. * * *'

On June 25, 1930, the electors of the State amended Section 104 to read:

'The state shall be divided into not less than six judicial districts, in each of which there shall be elected at general elections by the electors thereof one or more judges of the district court therein as may be provided by law. The term of office of a judge of the district court hereafter elected shall be six years from the first Monday in January succeeding his election and he shall hold his office until his successor is duly qualified. At the general election in 1932 there shall be elected as many judges as there are judgeships to be filled in each judicial district; the candidate receiving the highest number of votes shall be elected to a term of six years, the candidate receiving the next highest number of votes shall be elected to a term of four years, and in case three judges are to be elected, the candidate receiving the next highest number of votes shall be elected to a term of two years, and thereafter each judge shall be elected to a term of six years.'

On November 8, 1960, when the general election was held, the office of Judge of the Second Judicial District which is now in question was held by the duly elected incumbent, Judge Benson, who was entitled to hold the office under the provisions of the Constitution until the first Monday in January 1961, and until his successor was duly qualified. The relator contends that a vacancy was created in the office when Judge-elect Heringer, although deceased, failed to qualify on or before the first Monday in January 1961, or within ten days thereafter, as prescribed by Section 44-01-03 NDCC. To sustain his contention he points to a legislative enactment, Section 44-01-04 NDCC, which provides:

'If any person elected to any state, district, or county office shall fail to qualify and enter upon the duties of such office within the time fixed by law, such office...