State v. Sherwood

• Court: Minnesota Supreme Court
• Writing for the Court: Ripley
• Citation: State v. Sherwood, 15 Minn. 172 (Minn. 1868)
• Decision Date: 01 January 1868
• Parties: STATE OF MINNESOTA ex. rel. JOHN F. ATHERTON v. LYMAN A. SHERWOOD.

Page 172

15 Minn. 172

STATE OF MINNESOTA ex. rel. JOHN F. ATHERTON

v. LYMAN A. SHERWOOD.

Supreme Court of Minnesota.

Mandamus to require respondent to deliver to relator the seal, books, papers, etc., belonging to the office of the clerk of the district court, Mower county.

Allis, Gilfillan & Williams, for relator.

Gordon E. Cole, for respondent.

RIPLEY, C. J.

The alternative writ in this case recites that at the last general election, the relator a citizen of the United States, of full age, and residing in Austin, in Mower county, was elected to the office of clerk of the district court of said county, and upon the official canvass of votes received a certificate of such election under the hand and official seal of the county auditor, and thereafter, on the thirtieth day of December, 1869, took the oath and gave the bond required by law, and on the fourth day of January, 1870, filed the same in the office of the register of deeds; that on the fifth day of said month, at the office of the clerk of said court, he demanded of the respondent, who was his predecessor, and whose term of office had expired, the seal, records, books, papers, and all other things whatsoever belonging to said office, and then in respondent's possession, who refused to deliver the same to him.

The writ requires the respondent to deliver them, or show cause to the contrary.

On the return of the writ the respondent moved to quash it, because it does not allege that there was any clerk to be chosen at such election, or that relator received a majority of the votes cast, or that he was eligible, as having resided in the state and county for the time required previous to said election; in other words, that it does not show a title in the relator to the relief demanded.

The statute requires the writ to state concisely the facts showing the obligation of the defendant to perform the act. Rev. St. c. 80, tit. 1, § 4. This is but the converse of the rule at common law that the writ must show a clear right to the relief demanded. The relief demanded is the delivery of the seal, records, etc., appertaining to the office of clerk. Do the facts alleged in this writ sufficiently show a clear right in the relator to such relief? Although loosely drawn, it sufficiently appears from it that the relator holds a certificate from the proper officer of his election at the last general election to the office of clerk of the district court; that he has duly qualified; that the respondent, who was his predecessor in said office, and whose term of office has expired, is in possession of the articles demanded, and refuses, though requested, to deliver them to the relator.

These allegations bring the case within the scope of the decision of Crowell v. Lambert, 10 Minn. 369, (Gil. 295,) for they show the relator to hold a certificate of election to the office, to have duly qualified himself for the exercise of the duties, and that the respondent has no right whatever to the possession of the articles demanded.

It is true that the writ does not state for what term the election was had, but the presumption is that it was legally held, and also, as the term of office is fixed by the constitution at four years, and not until a successor is elected and qualified, and as the respondent is alleged to have been the predecessor of the relator in such office, and that such preceding term had expired, that it was for the regular term commencing January 1, 1870. Const. art. 6, § 13; Rev. St. c. 1, § 1. The motion to quash must, therefore, be denied.

The answer alleges that on the second day of December, 1869, there was a vacancy in the office of clerk; that on that day the respondent was duly appointed by the judge of said court to fill such vacancy, and hold and exercise the duties of such office till his successor should be elected and qualified; that he has duly qualified under such appointment, and still holds and exercises the duties of said office thereunder, and that no successor has been elected or qualified; that relator was at the time of said election, and still is, a citizen of Michigan, and had not resided in this state and said county for the required time previous to said election, and therefore was not eligible to, nor entitled to hold, said office.

The possession by respondent of the articles demanded, and the demand and refusal, are admitted. The expiration of respondent's term of office is denied, and, as to every other allegation in the writ, any knowledge or information sufficient to form a belief.

The answer further alleges that witnesses material to maintain the issues therein tendered reside in Michigan; that no adequate means are provided by law whereby said issues can be tried in this court; and that he is entitled to a trial thereof by jury, which cannot be had in this court.

Upon filing this answer the relator moved to strike out all the allegations of new matter therein as irrelevant, and the denial on information and belief as sham.

The respondent also moved to dismiss the proceedings upon the ground that the issues tendered by the answer were material; that he was entitled to a trial by jury therein, which could not be had in this court, nor any process or means by which he could obtain testimony from without the state.

The issue tendered is whether or not the relator was eligible.

From what has been already said, it follows that this issue would be immaterial but for the alleged appointment of respondent, as it would still leave the relator holding the certificate of election, and duly qualified, and the respondent in possession without right. Does the fact that he has been appointed to hold till a successor is elected and qualified make it a material issue? The respondent claims that Crowell v. Lambert was decided upon the peculiar circumstances of the case, showing a vacancy in the office de jure until Lambert's successor was inducted, and is not to be extended. The decision in that case is that the person holding the certificate is under those circumstances prima facie the officer, and therefore prima facie entitled to the insignia and records of the office.

If, in this proceeding, we are to go behind the certificate of election and try the title of the relator to the office, that case does not govern this, and the eligibility of Atherton is a material issue, otherwise not.

The correct rule seems to be that mandamus does...