Wishek v. Becker

• Decision Date: 05 December 1900
• Citation: 84 N.W. 590,10 N.D. 63
• Parties: WISHEK v. BECKER, County Judge.
• Court: North Dakota Supreme Court

10 N.D. 63

84 N.W. 590

WISHEK

v.BECKER, County Judge.

Supreme Court of North Dakota.

Dec. 5, 1900.

Syllabus by the Court.

1. When this action was instituted the defendant was an incumbent of the office of county judge of the county of McIntosh, N. D., and held said office by virtue of an election thereto. Defendant's original title to said office is not in question in this action, nor does the complaint allege that the plaintiff has a special interest in the result of this action which is peculiar to himself. The sole object of the action is to remove the defendant from said office. As grounds of action, the complaint charges the defendant with the forgery of a promissory note; also with divers acts of malfeasance, crime, and misdemeanor in office; also with gross incompetency. A preliminary motion was made in the district court to dismiss the action upon the ground that that court was without jurisdiction of the subject-matter of the action. This motion was denied. Held, that this ruling was error.

2. The complaint omitted to aver that the defendant had usurped or intruded into said office, or was unlawfully holding or exercising the powers of the same. Nor does the complaint allege that the defendant had done or suffered any act which, “by the provisions of law,” operated to work a forfeiture of the office or to create a vacancy therein. Held, that the action does not lie under the provisions of chapter 24 of the Code of Civil Procedure, for two reasons: (a) That a private person who has no special interest in the result of the action which is peculiar to himself cannot institute an action in his own name under said chapter; (b) that the complaint did not state a cause of action under said chapter.

3. Construing sectons 5741, Rev. Codes 1899, held, that said section deals with procedure only, and the said section must be so construed as not to enlarge the grounds of action or the remedies which were obtainable by the quo warranto proceeding which existed prior to the enactment of said section.

4. Held, further, where the object of the suit is only to remove the defendant from office upon some or all the grounds of removal enumerated in the constitution and statutes, that a civil action, under chapter 24, does not lie in any case, unless facts are alleged showing that the special remedies provided for removals from office, under the Codes of Civil and Criminal Procedure, are inadequate for the purpose. Removals from office in this state may be made by the various methods elaborated for the purpose in the constitution and statutes of the state. These methods are exclusive, unless it shall appear by the complaint, in an action brought under chapter 24, supra, that some of the causes of removal enumerated in section 5743 of that chapter are set out as grounds of action; nor can such an action be brought by an individual in his own name, under chapter 24, unless the complaint shows that the plaintiff has a special interest in the action.

5. Sections 361, 362, Rev. Codes 1899, construed. Held that, when construed together, said sections provide, in effect, that the removals from office contemplated by the same can be effected only “in the manner provided in the Codes of Civil or Criminal Procedure.” Neither of said sections attempts to provide a procedure, nor are either of the same self-executing.

6. Section 362 cannot, under existing laws, be enforced literally, because the several remedies for removals from office, as expressly provided in the Codes of Civil and Criminal Procedure, will not, under any circumstances, permit an action to remove an officer to be instituted in the name of a county, nor in the name of an individual, unless the averments in the complaint state a cause of action arising in favor of an individual, under the provisions of chapter 24 of the Civil Code.

Appeal from district court, McIntosh county; W. H. Winchester, Judge, presiding by request.

Action by John H. Wishek against Christian Becker, county judge. Judgment for defendant. Plaintiff appeals. Affirmed.

A. W. Clyde, for appellant. L. T. Boucher, for respondent.

WALLIN, J.

This is a civil action brought by the plaintiff to remove the defendant from the office of judge of the county court of the county of McIntosh. The district court, sitting without a jury, and after a trial of the action upon its merits, made and filed its findings, including findings of both law and fact, and thereby fully exonerated the defendant from the various charges against him, as set forth in the complaint. Pursuant to such findings, judgment was entered in the trial court dismissing the action, with costs. From such judgment the plaintiff has appealed to this court, and demanded a retrial here of certain questions of fact, which are specified in the statement of the case.

It is undisputed that the defendant, after holding said office of county judge for the two terms next preceding, was re-elected, and, after qualifying therefor by taking the official oath and giving a bond, entered upon the discharge of the duties of said office for the term commencing on the first Monday in January, 1899; and it further appears that the defendant, when this action was instituted, was, and ever since has been, an incumbent thereof.

The evidence transmitted to this court is voluminous, but, in the view which we have taken of the case, it becomes unnecessary to consider the evidence. The record discloses the fact that a preliminary motion was made in defendant's behalf to dismiss the action upon the ground that the trial court was without jurisdiction of the case, the subject-matter, or the person of the defendant. This motion was denied, and an exception was preserved to such ruling. The jurisdiction of the trial court over the subject-matter of the case and over the defendant's person was likewise challenged by the answer of the defendant.

We regard the legal question presented by the motion to dismiss, involving, as it does, the question of jurisdiction, as being vitally important and decisive of the case. The action was commenced by the service of a summons and complaint, and was tried below under the statute governing the procedure in cases tried in the district court without a jury. Section 5630. The complaint charges the defendant with the commission of a felony, viz. that of forging a promissory note; and further alleges that the defendant, while holding said office, has been guilty of misconduct, malfeasance, and misdemeanor in office by divers acts, which are set out in detail; and finally charges as a ground of action that the defendant is grossly incompetent to discharge the duties or exercise the powers of said office. The complaint does not attempt to allege any fact or facts tending to show that the plaintiff has any special interest in removing, or causing the removal, of the defendant from said office which is peculiar to himself, nor is there an allegation in the complaint that the plaintiff has any special interest in the action as against the defendant. There is neither allegation nor claim to the effect that any other person than the defendant has any right, title, or claim to said office; but, on the contrary, the complaint shows affirmatively that the defendant was lawfully installed in said office, and now exercises its powers, by virtue of his election by the people, and his qualification for the office in manner and form as the law directs. It is nowhere alleged in the complaint that any of the acts or omissions of the defendant which are set out as grounds of action are of such a character as to work a forfeiture of said office under the provisions of any law. On the contrary, the grounds of the action, as set out in general terms in the complaint, are such grounds of removal from office as are enumerated in sections 361, 7824, 7838, Rev. Codes. And the relief demanded is simply that the defendant be removed from office, and that the costs of the action be awarded to the plaintiff. Upon these averments of fact, the broad question arises whether a private person, not having any special interest in the action which is peculiar to himself, may, at his election, institute a civil action to remove a county officer from his office, and do this without the sanction or co-operation of any other person whomsoever or of any official. If this can be done, it certainly constitutes an innovation upon the practice, and that, too, of a startling nature. Our attention has not been called to any case reported in the adjudications which lends its sanction to any such practice, in the absence of express statutory permission to do so. But counsel for the appellant cited sections 361, 362, Rev. Codes 1899, as direct authority in support of the right of a private person to bring an action in his own name to remove from office. It must be conceded that section 362, standing alone, and construed without regard to other provisions of the Codes relating to removals from office, tends to sustain the counsel's contention. But a well-settled rule of construction requires the courts to construe a given statute with reference to, and in connection with, all other provisions of the statute law bearing upon the same subject-matter. Conforming to this familiar rule, we are required to examine other sections of the Codes relating to the matter in question. Sections 361-364 are found in the Political Code, and neither of said sections undertakes to provide any legal machinery or manner of procedure whereby an action to remove an officer can be either commenced or conducted when commenced. On the contrary, section 361 declares, in terms, that the removal from office on the grounds named in said section shall be accomplished “in the manner provided in the Codes of Civil or Criminal Procedure.” This language is plain as to its requirements, so far as the procedure is concerned in this class of cases. Its mandate is that the procedure to remove an officer must be...