State v. Board of Com'rs of Lyman County

• Decision Date: 14 February 1914
• Citation: 145 N.W. 548,34 S.D. 256
• Parties: STATE ex rel. REARICK v. BOARD OF COM'RS OF LYMAN COUNTY et al.
• Court: South Dakota Supreme Court

145 N.W. 548

34 S.D. 256

STATE ex rel. REARICK v. BOARD OF COM'RS OF LYMAN COUNTY et al.

Supreme Court of South Dakota

February 14, 1914

Appeal from Circuit Court, Lyman County; Wm. Williamson, Judge.

Mandamus by the State of South Dakota on relation of David Rearick against the Board of County Commissioners of Lyman County and others. Judgment for plaintiff, and defendants appeal. Affirmed.

McCoy J., dissenting.

Frank C. Wederath, of Presho, and Brown & Brown, of Chamberlain for appellants.

Bartine & Bartine, of Oacoma, and J. W. Jackson, of Kennebec, for respondent.

SMITH P. J.

At the general election in November, 1910, one Washburn was elected county commissioner for one of the districts of Lyman county and qualified and entered upon the duties of the office in January, 1911. The term of office was four years. On October 11, 1912, he resigned. One Brooks was appointed to fill the vacancy, on November 11, 1912, qualified, and was thereafter recognized by and acted with the other commissioners. In due season, relator Rearick filed a petition as candidate for the office of county commissioner for the same district, at the general election to be held November 5, 1912, pursuant to the provisions of section 1902, Pol. Code 1903. His nomination was certified by the county auditor, and notice thereof published in the official papers of Lyman county, in compliance with the requirements of section 1907, Pol. Code 1903. His name was placed on the official ballot, and also that of one Conley, his opponent, and the two names were generally voted upon as candidates throughout the district, at the general election held November 5, 1912. Relator received a majority of the votes cast, was declared elected by the canvassing board, and received the proper certificate of election. Thereafter, within the time required by law, he qualified, and executed, presented, and filed in the register of deeds' office a valid and sufficient official bond. Relator thereupon requested the board of commissioners to approve his bond, and asked that he be recognized as a member of the board and permitted to assume his official duties. The then acting members of the board refused his request, and relator brought this proceeding in mandamus. The trial court granted a peremptory writ, and the board appeals. Demurrer to the writ was filed, and also to the return, but we deem it proper to dispose of the case on its merits, and shall not consider either.

Appellant's first contention is that quo warranto is the proper proceeding in which to present the questions here involved, and not mandamus. It is settled law in this state that the title to an office cannot be tried in a mandamus proceeding. State ex rel. v. Kipp, 10 S.D. 495, 71 N.W. 440; Couch v. State, 169 Ind. 269, 82 N.E. 459, 124 Am. St. Rep. 221; Chandler v. Starling, 19 N.D. 144, 121 N.W. 198. It is equally well settled that mandamus is the appropriate remedy to admit to an office one who holds a certificate of election, valid on its face, and has qualified and furnished the prescribed official bond. Driscoll v. Jones, 1 S.D. 8, 44 N.W. 726; State ex rel v. Kipp, supra; Cameron v. Parker, 2 Okl. 277, 38 P. 14; Chandler v. Starling, 19 N.D. 144, 121 N.W. 198; State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N.W. 1025; Note 98 Am. St. Rep. 886; Note 31 L. R. A. 343; Crowell v. Lambert, 10 Minn. 369 (Gil. 295); State ex rel. v. Sherwood, 15 Minn. 221 (Gil. 172) 2 Am. Rep. 116. When an election has been legally held, the result declared by the proper canvassing board, a certificate of election valid on its face issued by the proper persons, and the candidate has qualified and given the proper official bond, his right to the writ cannot be defeated by reason of the existence of facts putting his ultimate title to the office in question. State ex rel. Butler v. Callahan, supra. This conclusion, however, rests on the assumption that the election was one authorized by law. The question decisive of this appeal, therefore, is whether an election to fill the vacancy caused by Washburn's resignation could lawfully be held on November 5, 1912.

The tenure of office of one appointed to fill a vacancy in the office of county commissioner is prescribed by section 1814, Pol. Code, which says: "Appointments under the provisions of this article shall be *** made to continue until the next general election at which the vacancy can be filled, and until a successor is elected and qualified. ***" It is the general policy of the law to fill vacancies in elective offices at an election as soon as practicable after the vacancy occurs. State v. Schroeder, 79 Neb. 759, 113 N.W. 192. The statute declares it is a vacancy which is to be filled at the next general election-which clearly means nothing more or less than that some one shall be elected to fill the office during the unexpired term-not that the vacancy must be one existing or continuing until the next general election. State ex rel. v. Biggins, 28 S.D. 41, 132 N.W. 677; State ex rel. v. Kerkow, 141 N.W. 377. This is made clear by section 1813, which provides: "If a vacancy occurs thirty days previous to an election day at which it may be filled, no appointment shall be made unless it be necessary to carry out said election and the canvas of the same according to law; in that case an appointment may be made at any time previous to said election to hold until after said election or until his successor is elected and qualified."

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