| S.D. | Mar 1, 1890
The respondent in this action was appointed clerk of the district court in and for Lawrence county, in the Territory of Dakota, on the seventh day of January, 1887, by Hon. Charles M. Thomas, then judge of said district, and was holding said office under such appointment at the time of the admission of the State of . South Dakota, and still retains possession of the seal and other property of such office. On the twelfth day of November, 1889, the appellant was appointed to said office by the board of county commissioners of said Lawrence county, and on the 22d day of the same month duly qualified, as required by law. No question is made as to the regularity of his appointment, or qualification under it, if the board had authority to make such appointment. On the 25th day of November, 1889, and prior to the commencement of these proceedings, appellant notified respondent of his said appointment as clerk of the circuit court for said Lawrence county, and of his qualification, and demanded of him the possession of the seal, records, books, furniture, and other property and appurtenances of said office, — all of which was refused by said respondent. On the 27th day of November, 1889, the Honorable Charles M. Thomas, judge of the said circuit court for Lawrence county, on petition of apiiellant, issued an alternative writ of mandamus, the mandate of which was as follows: “Now, therefore, we, being willing that full and speedy justice should be done in the premises, do command you that immediately upon receipt of this writ you do deliver up and surrender to the said Robert H. Driscoll the possession and custody of the seal of the circuit court in and for the county of Lawrence, and all and singular the books, papers, and records uf said court, or pertaining to the office of clerk of said court, in your possession, or under your control, including all books, papers, and records of the late district court of the county of Lawrence and Territory of Dakota, and of the clerk thereof, and also the keys and furniture of the rooms or offices provided by the county for the use of said clerk, and the keeping of said records, or that you show cause,” etc. By request and consent of parties and counsel, the matter was heard before Hon. John
Respondent contends that this is essentially a procedíng to try title to an office, and that mandamus cannot be used for such purpose. In theory, the line of demarkation separating the provinces of mandamus &nd quo warranto, and consequently the law governing each, respectively, is very well defined; but the practical difficulty often is to determine, from the features and characteristics of any particular case, to which province it belongs, and consequently to which law it is a rightful subject. The law undoubtedly is, as stated by the learned counsel for the respondent, that title to office is not properly determinable in mandamus proceedings. If this proceeding involves primarily the title to this office, and a decision of this application for mandamus requires the investigation and determination of such a controversy, then, certainly, mandamus Is not the proper remedy ; and this m ast be the first question to be settled. The appellant invokes the aid of the law by mandamus for the accomplishment of a specific object, to-wit: the possession of the seal, records, and other property incident to the office of clerk of the circuit court, and the mandate of the alternative writ simply responds to that appeal. Upon a trial in mandamus, the plaintiff presents his credentials, and the court then says, as a matter of law, these credentials do or do not entitle the holder to the possession of the property demanded. The court does not go behind the credentials to examine any antecedent question of fact which might affect their force or credit. It takes the credentials at their face value, and if they come from the proper authority, and are regular in form, the court declares their legal force and worth, not as evidence of plaintiff’s title or ultimate right to the office, but their legal value in support of his present claim, — in this case, the possession of the records of the cLerk’s office. These credentials may be subject to impeachment in quo warranto proceedings, where all the antecedent facts may be investigated, and in such proceedings the court may
The statute authorizes proceedings in the nature of quo warranto to determine the title to office, and this is the remedy which respondent claims should have been resorted to in this case. So far as we have succeeded in showing that this is not a proceeding to try the title to this office, the objection to the use of mandamus is removed; but, beyond this, an action in the nature of proceedings in quo warranto would, in our judgment, be neither speedy nor adequate. It would not be speedy; for, in the ordinary course of the law, a final determination of the
The respondent, Jones, claims possession of the records and other property in controversy by virtue of his appointment as clerk of the district court in and for Lawrence county, in 1887, by the then judge of the district of which said county was a part; and Section 4, Art. 26, of the constitution of South Dakota, which section is as follows: “All officers, civil and military, now holding their offices and appointments in this territory under the authority of the United States, or under the authoi’ity of the Territory of Dakota, shall continue to hold and exercise their respective offices and appointments until superseded under this constitution.” If, in a solution satisfactory to ourselves of the questions presented by this case, it had become very material, we should have pursued with considerable interest the inquiry as to the qualifications of the respondent, by virtue of the judicial appointment, as an officer, “under authority of the United States or the Territory of Dakota.” Evidently, the provisions of the organic act, authorizing the appointment by “each judge of the supreme court of one person as clerk of the district over which he presides,” did not, in the opinion of the early law-makers of the territory, authorize an appointment of such clerks for counties; for at their very first session, by Chapter 29 of First Legislative Assembly, they authorized the several judges to appoint a clerk for each organized county in his district, and this law, through several unimportant
There is little room for discussion as to the general purpose of this section. The destruction of the territorial, and the establishment of the state government were practically simultaneous. The change was instantaneous. But of the large number of officers and agents — amongst whom must necessarily be distributed the greatly diversified duties of the public service, and who must at once, upon the admission of the state, be depended upon to discharge such duties — but few would have been selected under the provisions of the new constitution. It was wisely provided, as it has often been before in similar cases, that all officers should continue to hold and exercise their - respective offices and appointments “until superseded under the constitution.’’ This supersession might occur either by the discontinuance of the office itself, under the constitution, or, if the office continued, by the selection, in a legal way, of a new incumbent. In either event, the officer would be superseded. And so it becomes material to inquire whether or not the office to which respondent was appointed, to-wit, clerk of the district court for Lawrence county, was continued or discontinued by the new constitution. If the jurisdiction of the old district and the new circuit courts were the same, or even co-extensive, the change in the name of such courts would not be controlling upon the question of their identity; but they are quite different in many important respects. The district court was created by and received its authority from the laws of congress. The cir
We come now to consider the claim of appellant to the possession of the seal, records, and other property incident to the office of clerk of the circuit court for Lawrence county, by virtue of his appointment as such clerk by the board of commissioners of said county. By Section 23 of the act of Congress approved February 22, 1889, under which the state was admitted, it was provided that, in respect to all cases, proceedings, and matters pending in the supreme and district courts of the territory of which the circuit and district courts of the United States might not have jurisdiction, the courts of the state established under its constitution should be the successors of said supreme and district courts. The State of South Dakota, by organizing under the provisions of this law, accepted its conditions, and consented to and did establish its circuit court as the successor of the territorial district court, subject to the distribution of its cases on jurisdictional grounds, as therein provided, and consented to and accepted the consequent condition of said section, and that all the files, records, indictments, and proceedings relating to such cases should be transferred to tiie appropriate courts of the state. Article 5 of the constitution creates the circuit courts, and defines their jurisdiction, and these courts, subject to the conditions and qualifications just noticed, are the successors of the territorial district courts. Section 32 of said Article 5 creates the office of clerk of the circuit court. By preadmission election, the several circuit courts of the state were provided with judges, but no specific provision was made for filling the office of clerk of the circuit court until the election in November, 1890. Section 5, Art. 9. How should this office
Simultaneously with the admission of the state, the constitution became the operative, imperative and constitutional law. The instant it became so operative, it created and established the office of clerk of the circuit court in each organized county. With the existence of the state came the existence of the office of the clerk of the circuit court for Lawrence county. It was a complete and established entity,. as much as the state itself, but it was empty; it was an unfilled office. It was in fact a vacant office, for it had no incumbent. If the office existed,— which is not questioned, — and if it was unfilled, — which, for the purposes of this case, is already determined. — we can think of no other ingredient necessary to complete a vacancy in such office. Such a conclusion is so plain as to repel the aid of argument, unless the word “vacancy” was deliberately used in the constitution in a restricted and limited sense, and this is the strenuous contention of respondent. He insists that as the constitution does not define “vacancy,” and the statute does, such definition becomes imperative and exclusive, and, unless some one of the conditions enumerated in the statute exists, there can be no vacancy in a legal sense; and upon this point he reinforces his own very forcible reasoning by referring us to Rosborough v. Boardman, 67 Cal. 116" court="Cal." date_filed="1885-06-06" href="https://app.midpage.ai/document/rosborough-v-boardman-5442117?utm_source=webapp" opinion_id="5442117">67 Cal. 116, 7 Pac. Rep. 261; State v. Messmore, 14 Wis. 192. The force of the California case is somewhat weakened by the dissenting opinion of Thornton, J., who says: I am of opinion that an office is vacant which
While we acknowledge there is much force in the argument of respondent’s counsel, that the statute having already defined a “vacancy,” and thus given it a legal meaning, the constitutional convention must be presumed to have used the word in that sense, we think, however, that the presumption cannot stand, when confronted with the fact to which we have already referred, — ’that having fully furnished the court with every