State v. Blossom

• Decision Date: 30 March 1886
• Citation: 10 P. 430,19 Nev. 312
• Parties: STATE ex rel. HARRIS v. BLOSSOM.
• Court: Nevada Supreme Court

10 P. 430

19 Nev. 312

STATE ex rel. HARRIS v. BLOSSOM.

Supreme Court of Nevada

March 30, 1886

Application for mandamus. The opinion states the facts.

T Coffin, for relator.

D. W Virgin, for respondent.

LEONARD J.

Relator seeks to compel the payment of two certain warrants drawn by the auditor of Douglas county upon respondent, as treasurer thereof, on account of salary of S. Somerfield as teacher in school-district No. 2, Douglas county, for the months of September and October, 1885; said warrants having been duly assigned to relator. In November, 1884, J. Q. Adams, H Vansickle, and J. S. Childs were elected school trustees of said district for the term of two years. In March, 1885, the legislature passed an act providing for the election of new school boards in all the school-districts of the state, on the second Saturday in May following, and also that the new trustees should assume the duties of their office on the first day of September, 1885.

Under the statute named, M. Harris and two other persons were elected trustees, and they thereafter qualified according to law. But one public school was required in said district, and on the fifteenth day of August, 1885, the old board held a public meeting, and employed a sufficient number of competent teachers for the ensuing school year, and M. Harris, one of the new trustees, was present at such meeting. Under the statute the school year commenced September 1st, but it was the custom throughout the state to open schools on the first Monday in September, which, in 1885, was on the seventh day of the month. On the first day of September the new board took forcible possession of the only public school building in said district, against the protest of the old board, and installed therein as teacher the said Somerfield, who was cognizant of the fact that other teachers had been employed by the old board. On the seventh of September, and for a long time thereafter, the new board held forcible possession of said school building. On the morning of the seventh the old board went to the school-house, and demanded the possession thereof for the purpose of commencing the school with the teachers employed by them. Possession was refused, and they then engaged another building in the district, and placed therein their said teachers, where they continued to maintain the public school, until, subsequently the public school building was given up to them. Somerfield taught his school during the months of September and October. On the tenth of September, 1885, proceedings were instituted in this court, by the attorney general, to determine which of the two contending boards was entitled to perform the duties of school trustees. On the seventh of November we decided that the second section of the statute approved March 12, 1885, under which the members of the new board were elected, was unconstitutional, and that Adams, Vansickle and Childs, constituting the old board, were the lawful trustees. State v. Harris, 8 P. 462. The new board did not at any time discharge the teachers employed by the old board, or notify them to discontinue their schools.

The principle ground urged by realtor in support of his petition is that Harris and others were the de facto board, and that their acts, as such, were good and binding in law as to the public and third parties. The general principle stated by counsel for relator, that, as to the public and third parties, the acts of de facto officers are binding, is well settled and admitted. But, applying it fully to the present case, is relator entitled to the writ sought? From the admitted facts, can it be said that M. Harris and his associates constituted the de facto board? There were two boards, each claiming that the other was unlawful; each urging and maintaining the validity of its own acts; each proceeding as though the other did not exist, in the matter of employing teachers, etc. The old board denied by word and acts that M. Harris and others were trustees, and continued to perform all the duties of such officers as though the statute of 1885 had not been passed, or the new board been elected. If M. Harris and his associates had not acted or pretended to act, it cannot be denied that the old board would have been trustees de jure and de facto. If the old was not the de factor board, it is not because it failed to exercise all the functions of a legal board, but it is because the new board did the same, and, while so acting, the statute under which they were elected had not been declared unconstitutional by any competent tribunal.

It is undoubtedly true, as claimed by counsel for relator, that the new trustees would have become a de facto board if the old ones had not acted as such; but since they did act as above stated, were they not the de facto board? Two physical bodies cannot occupy the same space at the same time, and two persons cannot be officers de facto for the same office at the same time. If an office is filled and the duties appertaining thereto are performed, by an officer de jure, another person, although claiming the office under color of...