State v. Hempstead

• Decision Date: 16 December 1910
• Citation: 78 A. 442,83 Conn. 654
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. COMSTOCK v. HEMPSTEAD et al.

78 A. 442

83 Conn. 654

STATE ex rel. COMSTOCK

v. HEMPSTEAD et al.

Supreme Court of Errors of Connecticut.

Dec. 16, 1910.

Appeal from Superior Court, New London County; Gardiner Greene, Judge.

Application for mandamus by the State, on the relation of Leolin A. Comstock, against Ezra A. Hempstead and others. From a judgment dismissing the alternative writ, relator appeals. Affirmed.

Application for a writ of mandamus to restore relator to the office of member of the school committee of Waterford. At the annual town election in Waterford on the first Monday of October, 1909, the relator was elected a member of the school committee, accepted said office, and acted as such member until February 12, 1910, when said school committee, acting under chapter 146, Pub. Acts 1909. declared a vacancy to exist in the office held by the relator and elected one Saunders to the office, which he has since filled. The relator was domiciled in Waterford for many years prior to the bringing of this action, and actually resided there until May 6, 1909, when he moved to Montville with his family, intending to return upon the happening of an event expected shortly, though uncertain in time. Alternative writ dismissed.

C. W. Comstock and L. R. Robbins, for appellant.

Brown and Perkins, for appellees.

WHEELER, J. The judgment finds that a peremptory writ of mandamus ought not to issue, and adjudges that the alternative writ of mandamus be dismissed. The respondents support the judgment upon two grounds: (1) That the relator has mistaken his remedy; (2) that the vacancy in the office the relator seeks to be restored to was legally declared and that Saunders was legally elected to the office, which he has since filled.

The respondents contend that they may in this court attack the remedy sought by having the denial of their motion to quash, and the judgment that the peremptory writ of mandamus ought not to issue reviewed, to determine whether mandamus is a proper remedy in this case. It is unnecessary to determine whether respondent appellees can in this court secure as of right a review of a denial of a motion to quash, since the motion was properly denied by the trial court. The motion to quash serves the purpose of a demurrer. State v. N. Y., N. H. & H. R. Co., 71 Conn. 47, 40 Atl. 925; Brainerd v. Staub, 61 Conn. 575, 24 Atl. 1040. It tests the legal sufficiency of the case set out in the alternative writ. The alternative writ in this case recited that the relator had been ousted from an office to which he had been legally elected and which he was legally filling, by a proceeding declaring his office vacant and electing another to fill the office. It contained no allegation that the successor to the relator was in actual possession of the office. A public official, such as the relator, ousted from an office in the performance of whose duties he is engaged and which he holds by clear legal title, can be restored to his office by mandamus, so long as the office is not filled by an occupant having color of title. Upon this proposition the authorities are in substantial agreement. Thompson v. Troup, 74 Conn. 124, 49 Atl. 907; Fuller v. Plainfield Academic 'School, 6 Conn. 546; Burr v. Norton, 25 Conn. lll; Swift's Digest, p. 563; Lawrence v. Hanley, 84 Mich. 404, 47 N. W. 753; People ex rel. v. Police Com'rs, 174 N. Y. 450, 67 N. E. 78, 95 Am. St. Rep. 596. But when the office from which an official has been ousted has been filled by an election or appointment giving an apparent color of title, and when the proceedings do not appear to have been taken in bad faith, and the successor is actually in the office, mandamus will not lie to restore the ousted official until the title to the office has been settled by proceedings of quo warranto.

In Duane v. McDonald, 41 Conn. 518, Fagan was elected a school committeeman, and was in the performance of the duties of the office when the relator brought his petition to compel his admission to the office. Our court, speaking by Park, C. J., said: "The view we have taken of the case renders it unnecessary for us to determine whether or not he was duly elected to the office of committeeman of the district, for we are satisfied, both on principle and by the great weight of authority bearing upon this subject, that mandamus will not lie to determine the title of an incumbent to an office, the functions of which he is exercising as an officer de facto. Resort must be had to an information in the nature of a writ of quo warranto to determine whether he is an officer de jure or not. Therefore, while that question remains undecided, mandamus will not lie to prevent his exercising the functions of the office." An office is full de facto when it is occupied by one by virtue of an appointment or election, giving a color of title, even though such appointment or election cannot be sustained in law. Id.; Leeds v. Atlantic City, 52 N. J. Law, 334, 19 Atl. 780, 8 L. R. A. 697; 2 Spelling on Extra. Rem. § 1576: Lawrence v. Hanley, supra; Lachance v. Mackinac Co. Canvassers, 157 Mich. 679, 122 N. W. 271; Bonner v. Pitts, 7 Ga. 473; Rex v. Mayor of Colchester, 2 T. R. 259; Rex v. Mayor of York, 4 T. R. 699; note to State v. Baldwin, 19 L. R. A. (N. S.) 57; note to State v. Johnson, 31 L. R. A. 357.

One of the controlling reasons why mandamus will not issue to restore to an office one claiming title to it when another claims title under color of right and is in possession is because in such proceeding the adverse claimant has no opportunity to be heard in defense of his title. State ex rel. v. Board of Health, 49 N. J. Law, 352, 8 Atl. 509. But where the ouster is absolutely void, clearly without legal warrant or in total disregard of law, and the successor obtains not even a color of title to the office, or the proceedings are plainly had in bad faith, and hence are absolutely void, the appointment or election of the successor is a mere nullity, and mandamus will lie to restore one to an office from which he was illegally ousted. An occupant of an office having no color of title cannot claim the office against one ousted from it and having a clear legal title to it. The title de jure draws to it possession de facto, and mandamus is the proper remedy to restore him to his office, since there is no title to try. The Supreme Court of New Jersey in an action on a rule to show...