Williams v. Clayton

• Citation: 21 P. 398,6 Utah 86
• Court: Supreme Court of Utah
• Decision Date: 08 March 1889
• Parties: PARLEY L. WILLIAMS, RESPONDENT, v. NEPHI W. CLAYTON, APPELLANT

21 P. 398

6 Utah 86

PARLEY L. WILLIAMS, RESPONDENT, v. NEPHI W. CLAYTON, APPELLANT

Supreme Court of Utah

March 8, 1889

APPEAL from a judgment of the District Court of the third judicial district and from an order denying a motion for a new trial. The facts sufficiently appear from the opinion of the court.

Affirmed.

Mr Jabez G. Sutherland, for the appellant.

Mr Waldemar Van Cott, and Respondent in person, for the respondent.

BOREMAN J. HENDERSON, J., concurred. JUDD, J., concurred in the judgment.

OPINION

BOREMAN, J.:

On the 13th day of March, 1886, the plaintiff, P. L. Williams was appointed and commissioned Superintendent of District Schools for Utah Territory by the Governor of the Territory. He claimed to be such superintendent until the 3d day of April, 1887, when the office was abolished by an act of congress, and by that act the office of commissioner of schools was created, to be filled by appointment of the supreme court of the territory. The plaintiff was by the supreme court appointed to the office of commissioner of schools on the 2d day of April, 1887. The legislature in March, 1888, made an appropriation of the sum of $ 1,500 for salary of "the territorial superintendent and commissioner of schools" for the years 1886 and 1887. Plaintiff made demand upon the defendant for a warrant upon the treasurer for the $ 1,500 thus appropriated. The defendant drew his warrant for $ 750, for the year 1887, but refused to draw a warrant in favor of the plaintiff for the year 1886, alleging that he had given a warrant for $ 750 to L. John Nuttall, and that Nuttall was acting superintendent for that year, under an election said to have taken place in 1884. The plaintiff then applied to the district court for a mandamus to compel the defendant to issue his warrant upon the treasurer for said $ 750 claimed by plaintiff. Judgment was given for the plaintiff and thereupon the defendant appealed to this court.

The defendant contends that the title to the office is involved in this action, and that consequently the plaintiff has mistaken his remedy, and should have first proceeded by action in the nature of quo warranto to try the title to the office. It is no doubt true that, as a general proposition, the proceeding by quo warranto is the proper one in which to try the title to an office, and that it can not be litigated in mandamus. But such trial of the title, when the rule requires resort to quo warranto, means the right to the possession of the office when such possession is held by another, and the purpose of the action is to oust the occupant. It is not to be resorted to when there is no occupant. The authorities cited by counsel bear out this idea. If the object of the present action were to try the title to the office of superintendent, and had been brought by one out of possession against one in possession, proceedings in the nature of quo warranto would be proper and necessary; but the title to the office, so far as it can be litigated in quo warranto, is a question that could not possibly arise in this controversy. Nuttall is not in possession of the office, and was not when the action was brought. He could not, therefore, be ousted, as he was already out of the office, and the object of quo warranto proceeding had been accomplished, the judgment in such proceeding being one of ouster. If there be no intruder in possession of the office when the action is brought, there could be no judgment of ouster. A proceeding, therefore, in the nature of a quo warranto would not have been necessary or proper. Nichols v. MacLean, 101 N.Y. 526, 537, 5 N.E. 347; State v. Jacobs, 17 Ohio 143; Com. v. Athearn, 3 Mass. 285; Teal v. Sweeting, 2 Johns. 183. Nuttall was not only out of the office, but had been out of it over a year, when this suit was brought, and in fact the office itself had been abolished.

It being clear that the title to the office of superintendent could not be tried by a proceeding in the nature of quo warranto after the office had been vacated by the alleged de facto officer, Nuttall, and after the office itself had been abolished, there could be no legal objection to passing upon such title in some other action in which it might arise. It arises incidentally in this case. It is not the direct object of the action, but is first brought into the case by the answer of the defendant, which denies the right of plaintiff's claim to have been the officer. The proceeding is to compel the issuance of the warrant prayed for, and, to secure this, resort is had to mandamus. That is a proper proceeding, if there be no other plain, speedy and adequate remedy. It is claimed by the defendant that such adequate remedy existed through an action against Nuttall, to whom a warrant had been issued for said $ 750 now sought by the plaintiff. So far as the recovery of the money was concerned, there is no certainty that it could have been recovered from Nuttall. He may have been insolvent, but if solvent, it was very plain that he could not have been reached. He was in concealment, and could not be found, after diligent search by plaintiff. Yet if he were solvent, and could not be found, an action against him would not have been an adequate or a speedy remedy. Such a remedy, in contemplation of the statute, must be against the same party. It does not mean that a man must exhaust every source from which it might be supposed he could collect the money. It simply means that he must have exhausted every plain, speedy and adequate remedy to collect it through or from the same party. It does not require him, before resorting to mandamus, to sue everybody else that might be liable for the money. The proceeding against the defendant was to compel the issuing of the warrant to the plaintiff. An action against Nuttall would not accomplish this object. The warrant could only be issued by the auditor, and mandamus was the only means left to plaintiff to secure this action, and it was consequently proper. People v. Smyth, 28 Cal. 21.

It is claimed that Nuttall should be a party to the proceeding before any judgment could be entered against the auditor. If Nuttall were in office as a de facto officer at the time the suit was instituted, he might have had an interest in the salary, and had the right to claim it adversely to the plaintiff. But such was not the fact. He was out of office, and could, as against the de jure officer, have no right to the money. There was, therefore, no necessity for making him a party.

The cases to which our attention has been called were where the de facto officer was in the possession of the office. As there was no authority for issuing the warrant to Nuttall, payment to Nuttall could be no...