Duane v. McDonald, 41 Conn. 517

Duane v. McDonald

41 Conn. 517 | Conn. | 1874

Park, C. J.

We think it is clear, that Patrick Eagan is a de facto committee-man of the district. He received a plurality of all the votes cast at the meeting of the district, and was declared to be elected by the presiding officer, and on motion being made that the decision of the chair, declaring him elected, be sustained, the meeting almost unanimously voted to sustain it. It further appears that he entered upon the duties of the office of committee-man and is still exercising them, and during all the time that has intervened he has been recognized as a committee-man, duly elected, by the other members of the committee.

These facts, primá facie, seem to constitute him a committee-man of the district de jure. So far as third persons are concerned, they cannot discover the illegality of his election otherwise than by an examination of the records of the meeting. They will have to ascertain the' whole number of votes cast for all the candidates, and the number cast for him. Such being the case, he clearly has color of title to the office, and consequently is a de facto committee-man of the district.

*520The 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 committee-man 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 exercing 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. High, in his recent work on Extraordinary Legal Remedies, in the forty-ninth section, says: “ The rule may now be regarded as established by an overwhelming current of authority, that where an office is already filled by an actual incumbent, exercising the functions of the office de facto, and under color of right, mandamus will not lie to compel the admission of another claimant, nor to determine the disputed question of title. In all such cases the party aggrieved who seeks an adjudication upon his alleged 'title and right of possession to the office, will be left to assert his rights by the aid of an information in the nature of quo warranto, which is the only efficacious and specific remedy to determine the questions in dispute. And whenever it is apparent on the face of the pleadings that the issue presented involves a determination as to the person properly elected to an office, or entitled to exercise its functions, the writ of mandamus will be withheld.” And in the next section he says: “Aside from the existence of another adequate remedy by proceedings in quo warranto to test the title of an incumbent to his office, it is a sufficient objection to relief by mandamus in such a case, that the granting of the writ would have the effect of admitting a second person to an office already filled by another, both claiming to be duly elected thereto, and resort must still be had to further proceedings to test the disputed title.” The doctrine of High is supported by many authorities. People v. Corporation of New York, 3 John. Cas., 79; People v. Supervisors of Greene, 12 Barb., 217; *521Anderson v. Colson, 1 Neb., 172; Bonner v. State of Georgia, 7 Geo., 473; St. Louis County Court v. Sparks, 10 Misso., 118; State v. Rodman, 43 id., 256; People v. Common Council of Detroit, 18 Mich., 338; Underwood v. White, 27 Ark., 382; Commonwealth v. Commissioners of Philadelphia, 6 Whart., 476; King v. Mayor of Colchester, 2 Term R., 260; Queen v. Derby, 7 Ad. & El., 419; King v. Winchester, id., 215.

Again, it is not only well settled, but everywhere held, that mandamus will "not lie when there is another adequate remedy ; and it is equally well settled that an information in the nature of quo warranto not only will lie to test the title of a party to an office claimed by another, but it is particularly adapted to determine such controversies.

For these reasons it seems to us clear that the relator, in this case, has mistaken his remedy.

We are aware that the law is held to be otherwise in the neighboring state of Massachusetts, and in the state of Maryland. In these states it has been held that mandamus will lie to determine the title to a disputed office, and to restore the relator thereto, even though quo warranto would also lie, on the ground that the latter remedy might prove inadequate by reason of delay, and that while judgment of ouster might be given against the incumbent, such judgment would not necessarily instate the claimant in the office, but he might afterwards be compelled to resort to a mandamus in order to accomplish this result.

The doctrine of these states seems mainly based upon the ground that parties may not heed the judgments of ouster in proceedings of quo warranto, and thereby may necessitate further proceedings by mandamus. This seems to us to be making provision for cases that will rarely occur. When the title of an incumbent of an office is fully heard and determined against him, there is no more reason to apprehend that he will refuse to acquiesce in the judgment of ouster, than there is that he will disregard the decisions of courts in any other class of cases, and it seems to us a departure from the ordinary course of judicial proceedings to make an exception in cases of quo warranto. Through all the course of the *522common, law, proceedings by mandamus and by quo warranto have been kept distinct from each other, each adapted to and employed for its special purpose. This rule has not been departed from, we believe, except in the two states referred to, and there for reasons that do not satisfy us. We see no necessity for extending the common law remedy of mandamus beyond its original and well-established limits.

We advise the Court of Common Pleas that the petition is insufficient.

In this opinion the other judges concurred.