State ex rel. Sathre v. Roberts

• Decision Date: 19 November 1936
• Docket Number: No. 6442.,6442.
• Citation: 269 N.W. 913,67 N.D. 92
• Parties: STATE ex rel. SATHRE, Atty. Gen., v. ROBERTS.
• Court: North Dakota Supreme Court

67 N.D. 92

269 N.W. 913

STATE ex rel.SATHRE, Atty. Gen.,

v.ROBERTS.

No. 6442.

Supreme Court of North Dakota.

Nov. 19, 1936.

Syllabus by the Court.

1. Section 531, Code Civ.Proc. 1877, section 7969, Comp.Laws 1913, providing that the remedies formerly attainable by writ of quo warranto, and proceedings by information in the nature of quo warranto, may be obtained by a civil action in the district court, does not abolish the said writ of quo warranto, or proceedings by information in the nature of quo warranto, but is cumulative and additional procedure accomplishing the same results by a civil action.

2. A judgment in the district court in quo warranto, which establishes the right of a party to the office of county judge and clerk of the district court, is self-executing and not suspended by an appeal bond or supersedeas.

3. Where there is no dispute on the facts and the only question involved is one of law, the parties are not entitled to a jury trial as a matter of right.

4. Where defendant's motion for dismissal for want of jurisdiction and his demurrer to the complaint or information have been overruled in a quo warranto proceeding, he may be required to answer forthwith.

5. Chapter 23, Sess.Laws 1879, sections 2547 to 2579, Comp.Laws 1913, as amended, establishes a hospital for the insane, provides for the organization of a board of commissioners of insanity in each organized county, and creates a method for determining who are fit subjects for treatment in such hospital.

6. The finding of the board of commissioners of insanity that a person is insane and a fit subject for treatment in the hospital for the insane has no bearing upon his legal mental status. The effect of such finding is to admit one to the asylum for treatment and it is not entitled to the faith and credit of a judgment of a court, as the members of such board do not act as judicial officers, but as a special board clothed with special powers only.

Appealed from District Court, Hettinger County; Harvey Miller, Judge.

Quo warranto by the State of North Dakota, on the relation of P. O. Sathre, Attorney General, against E. C. Roberts. Judgment for relator, and defendant appeals.

Affirmed.

Simpson, Mackoff & Kellogg, of Dickinson, for appellant.

J. P. Cain, Sp. Asst. Atty. Gen., for respondent.

BURKE, Chief Justice.

This is a proceeding in quo warranto.

A sufficient petition, signed by Jacob Mehrer, William Rohlf, Joe Fix, and John Kraus, citizens of the United States, freeholders, residents, and voters of Hettinger county, prays that the Attorney General prosecute an action in quo warranto in the case of state of North Dakota against the said E. C. Roberts to determine the rights of said Roberts to said office. On this petition the Attorney General duly ordered the bringing of this action and the appointment of Honorable J. P. Cain as Special Assistant Attorney General to prosecute said writ of quo warranto at the expense of the said Henry Barry, who executed a bond with sureties for costs.

The writ of quo warranto was issued and served upon the defendant, E. C. Roberts, on the 14th day of July, 1936. The defendant, on the 21st day of July, 1936, appeared specially and objected to the jurisdiction of the court. The objection was overruled and the defendant submitted a demurrer on the grounds that (1) the information and complaint in quo warranto does not state facts sufficient to constitute a cause of action. (2) That several causes of action have been improperly united and that such attempts to set forth a cause of action for the removal of the defendant, and also one for the collection of salaries, fees, and money received by the defendant, and also seeks to reinvest one Henry Barry with the office.

The demurrer was sustained as to that part of the information or complaint applying to the collection of salaries, fees, and money received, and overruled on the question of the title or right to the possession of the office.

The defendant then claimed, as a matter of right, time to plead upon the theory that by section 7969, Comp.Laws 1913, the writ of quo warranto had been abolished and the remedies formerly obtained under the writ were now obtained by civil action, which only could be commenced by the service of summons as in other civil actions and that the defendant, as a matter of right, was entitled to 30 days after the service of the summons to answer the complaint or information, which contention was overruled by the court. The defendant was required to plead forthwith, and did duly file his answer, stating, in substance, that the said Henry Barry was elected to the office of county judge and clerk of the district court of Hettinger county; that he qualified and continued to act until on or about the 4th day of April, 1936; that on the 4th day of April, 1936, the commissioners of insanity of Hettinger county found Henry Barry to be insane and a fit subject for treatment and custody in the North Dakota Hospital for Insane; that said Henry Barry was duly committed to the hospital for the insane at Jamestown, N. D., and that the said office of county judge and clerk of the district court of Hettinger county was and became vacant, and on the 6th day of April, 1936, the board of county commissioners of Hettinger county, by resolution, duly declared the office of county judge and clerk of the district court to be vacant and then and there appointed to said office of county judge and clerk of the district court the defendant, E. C. Roberts.

The trial judge found all the facts favorable to the said Henry Barry and that the said E. C. Roberts did on or about the 6th day of April, 1936, usurp and intrude into, and since said time has unlawfully held and attempted to exercise the office of county judge and clerk of the district court of the county of Hettinger.

As a conclusion of law, the court found that the finding and determination of the board of commissioners of insanity of the county of Hettinger and state of North Dakota, made and entered on the 4th day of April, 1936, adjudging the said Henry Barry to be a fit and proper person for treatment at the State Hospital for Insane at Jamestown, N. D., was not and did not constitute a judicial determination of the said Henry Barry's sanity or insanity, and, therefore, the resolution of the county commissioners declaring the office of county judge and clerk of the district court vacant because of such determination and the appointment of E. C. Roberts as county judge and clerk of the district court on April 6, 1936, was in all things null and void.

Judgment was duly entered, and a stay of execution being refused, the said Henry Barry was duly installed in the office of county judge and clerk of the district court of Hettinger county, and the defendant duly appeals.

[1] There is no merit in the defendant's contention that the writ of quo warranto is abolished by section 531 of the Code of Civil Procedure of 1877, section 7969, Comp.Laws 1913, which reads as follows: “The remedies formerly attainable by the writ of scire facias, the writ of quo warranto and proceedings by information in the nature of quo warranto may be obtained by civil action in the district court under the provisions of this chapter and of chapter 27.”

If this section, which became a law in 1877, abolished the writ of quo warranto and proceedings by information in the nature of quo warranto, as appellant contends, then the power to issue the writ was duly restored by section 87 of the Constitution adopted in 1889, and which provides: “It [the Supreme Court] shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction and such other original and remedial writs as may be necessary to the proper exercise of its jurisdiction,” and section 103 of said Constitution confers the same power upon the district courts; but section 7969 does not repeal or abolish the writ of quo warranto. It simply provides that the remedies formerly attainable by such writ or information may be obtained by a civil action.

This very question was before the South Dakota court in the case of Wright v. Lee, 4 S.D. 237, 55 N.W. 931. At page 933 of 55 N.W., the South Dakota court said: “In our former opinion, it was suggested that the state might proceed under sections 5345, 5346, Comp.Laws, providing that the remedies heretofore reached by writ of quo warranto, and proceedings by information in the nature of quo warranto, might be obtained by civil action, as provided in said sections. Against this suggestion, appellant contends that said sections were, by implication, repealed by the state constitution, and that, in any event, they are inapplicable in the case of a foreign corporation. In our judgment, neither contention can be maintained. In People ex rel. Attorney General v. Association, 84 Cal. 114, 24 P. 277 , cited by appellant in support of the theory of repeal, the facts were not as here. There the legislature had expressly abolished the writ of quo warranto, and proceedings by information in the nature of quo warranto, and by the same section, and in continuous language, provided that the remedies obtainable under the abolished writ and proceedings might thereafter be obtained by civil actions, in the manner thereinafter provided. Section 802, Code Civil Proc.1872. But here the territorial legislature made no attempt to abolish either. Such attempt would have been abortive, if undertaken, for the powers and jurisdiction of the territorial courts were established by the organic act, and included the power and right to issue all common-law writs. The civil action provided by those sections was therefore not exclusive, but cumulative. In the California case, however, the legislature abolished the writ, and in the same breath provided a new remedy. The two provisions were evidently intended to be interdependent, so that there might have been reason for holding that the new constitution, which restored...