State ex rel. Wiles v. Albright

• Decision Date: 31 December 1901
• Citation: 88 N.W. 729,11 N.D. 22
• Court: North Dakota Supreme Court

88 N.W. 729

11 N.D. 22

STATE ex rel. GEORGE C. WILES v. CHRIST ALBRIGHT

Supreme Court of North Dakota

December 31, 1901

Appeal from District Court, McIntosh County, Lauder, J.

Application by the state, on the relation of George C. Wiles, for writ of mandamus against Christ Albright, county auditor. Judgment for relator, and defendant appeals. Reversed.

Alternative writ of mandamus dismissed. Order and judgment awarding the peremptory writ of mandamus reversed, and proceeding dismissed.

A. W Clyde and Morrill & Engerud, for appellant.

Herreid & Williamson, for respondent.

OPINION

MORGAN, J.

This is an appeal from an order and judgment granting a peremptory writ of mandamus commanding the defendant to issue a warrant to the relator for the sum of $ 635.81, claimed by the relator as due to him as his salary as county superintendent of schools of McIntosh county. The facts as recited in the affidavit on which the alternative writ of mandamus was issued, are the following, viz.: That the relator had been the duly elected and acting superintendent of schools of McIntosh county from the year 1897 until January, 1901; that the defendant was in January, 1901, and for two years prior thereto had been, the duly elected and acting auditor of said county; that during the school years ending June 30, 1899 and 1900, respectively, the actual number of schools held in said county, and over which relator had supervision, was 78 in 1899 and 83 in 1900; that the relator, as superintendent of schools, filed with the county auditor and county commissioners of said county the receipt of the superintendent of public instruction, showing that all reports required to be filed in said superintendent of public instruction's office had been duly rendered to said superintendent of public instruction and filed in the office of the relator, and that relator had filed, as such county superintendent, his certificate and report showing the actual number of schools over which he (the relator) had actual supervision during the school years commencing June 30, 1899, and June 30, 1900; that said defendant refused, after demand, to issue to the relator a warrant for the salary due him as such superintendent of schools for the months of June, July, August, September, October, November, and December of the year 1900, amounting in the aggregate to the sum of $ 688.33. Upon such affidavit an alternative writ of mandamus was issued, embodying the same allegations contained in the affidavit, and served on the defendant. The alternative writ ordered the defendant to show cause and make due return to said writ at Wahpeton on January 30, 1901. At such time and place the defendant made answer to said writ, and in said answer the following allegations were made in detail: A denial that the number of schools in said county over which relator had supervision in 1899 was 78, as claimed by him, and not more or greater than 69, and for 1900 not 83 as claimed by relator, and was not more than 69. A denial that relator filed any report with defendant showing the actual number of schools over which he had supervision, and a denial that defendant refused to issue a warrant to relator for his salary for the months named in the alternative writ, and a denial that there is any salary due him for said months. The answer further alleged that during the school year ending June 30, 1898, the relator's salary was paid, after having been allowed by the county commissioners upon bills presented by relator to that board, and duly verified by the oath of relator, to the effect that they were just and true; that thereafter, and up to the month of May, 1900, the relator demanded and received his salary from the defendant for the amount that relator claimed that he was entitled to. The answer contains a further allegation in the following words: "That in June, 1900, having reason to believe that the warrants by him issued to said relator, each in the sums last above mentioned, were considerably in excess of the amount actually accruing to him, made a report to the board of county commissioners of said county to that effect, and referred the matter to said board for determination at his semi-annual settlement therewith, during its July session for 1900. That said board, accordingly, in session, after a full hearing in the premises, at which said relator appeared in person and presented the grounds of his said claim to payment at said rate, gave its decision upon the evidence before it, finding that said relator had been overpaid as county superintendent since July 1, 1897, for the first year $ 160; for the second year, $ 160; and for the last preceding year up to April 30, 1900, $ 75; * * * and ordered that no more warrants be issued by this defendant, as county auditor, to said George C. Wiles, as compensation or salary as county superintendent, until there shall have been accrued to him by virtue of said office a sufficient sum to satisfy the amount of such overpayment. * * * That, deeming himself bound to obey the order of the board as aforesaid, defendant has since refused to issue warrants to the amount aforesaid for salary accruing to said relator from and after May 31, 1900, which being rated and determined as hereinafter stated, covered the salary so accruing to him for the months of June, July, August, September and part of October, 1900." Other facts are stated in the answer, which need not be recited, as these are, in our judgment, sufficient for a correct determination of the rights of the parties to the litigation. Upon the hearing the relator filed a paper called a "waiver," in which he disclaimed all rights to the sum of $ 52.52; being the difference between the amount claimed by him in his affidavit and the amount that would have been due relator, without off-setting the sum of $ 395 overpayments of salary made to the relator during the time between 1897 and May, 1900. The district court decided, as a matter of law, that a peremptory writ should issue upon the allegations of the pleadings without proof. From the order and judgment awarding the peremptory writ the defendant has appealed to this court, and has duly assigned errors based upon the action of the trial court in granting the writ, both upon questions of law and of fact.

The respondent moves to dismiss the appeal upon the ground, as alleged, that the mandate of the peremptory writ has been fully complied with, and that in consequence thereof there is no practical issue to be determined on the appeal. The facts on which this motion is based are: That a warrant for $ 395 was issued by the defendant and delivered to the relator immediately after the peremptory writ had been served on the defendant, and a demand for the warrant had been made on him by the relator. The service of the writ and the demand were made about 4 o'clock in the afternoon of February 20, 1901. The defendant objected to issuing the warrant then for the reason that he desired to consult with the state's attorney, who had then departed for his home, some six miles distant. The relator insisted on having the warrant then and there delivered to him, and threatened that, unless delivered, he would proceed against him for refusing to obey the order of the court, by having him arrested for contempt of court, and that, if he left that room without the warrant, it would be too late for him to save himself from the penalties following a refusal to obey the order of the court, thereafter. That fearing such arrest and imprisonment, and being ignorant of his rights under the circumstances, he issued the warrant for $ 395. Such are the circumstances under which the warrant was delivered to the relator, substantially as narrated in defendant's affidavit in opposition to the motion to dismiss the appeal. The relator contends that this was a voluntary compliance with the writ. The defendant contends that it was a compliance under duress, and, as such, not voluntary. We are not called upon to determine the effect of the threats made by the plaintiff upon the defendant, as it is clear to us that the motion should be denied upon another ground.

The writ commanded that the auditor issue a warrant for $ 635.81 without specifying any items comprising such sum. This sum was described as "salary." The auditor issued a warrant for $ 395 only. This left the writ uncomplied with to the extent of $ 240.81. The mandate is still unsatisfied, and to that extent, at least, remains as a command to be obeyed by the defendant if the judgment is affirmed. The disposition of this sum still remains to be made, and the fact that no issue was made concerning payment of this sum is immaterial, as the issues may be changed when reached for final adjudication, in view of the issuance of the warrant for $ 395. The nature of this order, however, is such that a compliance with it would not necessarily be considered as an abandonment of the right of appeal. Payment of an enforceable judgment is not of itself deemed in all cases such a compliance with the judgment as to deprive a defendant of his appeal. Unconditional payment of a judgment by the person against whom it is rendered, and an unconditional acceptance of such payment by the person in whose favor it is rendered, are radically different, as affecting the right to appeal. Accepting the benefits of a judgment, and an appeal therefrom thereafter, are acts inconsistent with each other. The unconditional payment and compliance with a judgment are not always matters of choice, and are therefore not always deemed voluntary, as a matter of law. Payment or compliance may be exacted by execution or commitment, and are therefore deemed involuntary. Payment or compliance as a matter of compromise, or under some special arrangement by which an...