State ex rel. Ness v. Bd. of Com'rs of Fargo

• Court: North Dakota Supreme Court
• Writing for the Court: BURKE
• Citation: State ex rel. Ness v. Bd. of Com'rs of Fargo, 63 N.D. 85, 246 N.W. 243 (N.D. 1933)
• Decision Date: 14 January 1933
• Docket Number: No. 6085.,6085.
• Parties: STATE ex rel. NESS v. BOARD OF COM'RS OF CITY OF FARGO et al.

63 N.D. 85

246 N.W. 243

STATE ex rel.NESS

v.BOARD OF COM'RS OF CITY OF FARGO et al.

No. 6085.

Supreme Court of North Dakota.

Dec. 19, 1932.

Rehearing Denied Jan. 14, 1933.

Syllabus by the Court.

1. A void judgment is no judgment and can never be res adjudicata.

2. The statute requires the city commissioners to act at the hearing required for the removal of city officials, and the oath, which the statute and Constitution requires them to take before entering on their duties as commissioners, qualifies them to act in the discharge of all their statutory duties.

3. Under section 833, Compiled Laws for 1913, notaries public are given specific authority to administer oaths.

4. Where a city official has been removed by the board of city commissioners, the only question that can be considered on certiorari is the question of the jurisdiction.

Appeal from District Court, Cass County; M. J. Englert, Judge.

Certiorari proceeding by the State of North Dakota, on the relation of J. G. Ness, against the Board of Commissioners of the City of Fargo, N. D., and others. From an order dismissing the proceeding with prejudice on the merits, plaintiff appeals.

Judgment affirmed.

M. A. Hildreth, of Fargo, for appellant.

M. W. Murphy, City Atty., of Fargo, for respondents.

BURKE, J.

John G. Ness, city assessor of the city of Fargo, N. D., was, on the 10th day of August, 1931, removed from said office by the board of city commissioners. On a writ of certiorari the district court of Cass county held that the proceedings were null and void and on appeal, by the city to this court, the judgment of the district court was affirmed. State ex rel. Ness v. Board of City Commissioners of the City of Fargo, 245 N. W. 887.

On October 30, 1931, charges were again preferred against Mr. Ness, and after a hearing he was removed, and again petitioned the district court of Cass county for a writ of certiorari to the board of city commissioners, and upon hearing thereon the district court denied the writ of certiorari, ordered the proceedings dismissed with prejudice upon the merits, and the plaintiff duly appealed from the judgment entered on said order.

The charges filed against the plaintiff, upon which hearing was had, are the same charges filed against the plaintiff in the first hearing, and one additional charge accusing the plaintiff with misfeasance and malfeasance in his conduct of the office of city assessor.

[1] It is the contention of the appellant the board of city commissioners and the court were without jurisdiction to hear and determine the questions involved in the charges, for the reason that the charges against the appellant are the same as the charges involved in the first hearing, and that the judgment in the first hearing is res adjudicata and cannot be inquired into in the instant case.

There is no merit to this contention, for the reason that the judgment in the former proceeding was held to be void, and a void judgment is no judgment. Only final legal judgments can be res adjudicata.

[2] Second. The appellant contends that the commissioners could not act as commissioners at the hearing without taking an oath to try the case fairly.

There is no merit to this claim, as the statute makes it the duty of the commissioners to act in such hearings, and their oath of office is sufficient. State ex rel. Ness v. Board of City Commissioners (N. D.) 245 N. W. 887.

[3] Third. The witnesses, at the hearing, were sworn by a notary public. It is the contention of the...