54 Kan. 63 | Kan. | 1894
The opinion of the court was delivered by
This is an application to this court, in the exercise of its original jurisdiction, for mandamus to compel the defendants, as trustees of the state charitable institutions, having control of the insane asylum at Topeka, to restore B. D. .Eastman to his official position as superintendent
It is contended by the defendants that the petitioner has mistaken his remedy, and that mandamus will not lie. It is-said that his appropriate remedy, if he has any, is by qua warranto. The great weight of authority is, that the courts will refuse to lend their extraordinary aid by mandamus to compel the admission of a claimant to an office in the first instance where he has never been in the actual possession of the office or discharged its duties. Where, however, one has been in the actual and lawful possession and enjoyment of an office, from which he has been wrongfully removed, a different case is presented. Prior to the 3d of July, 1888, George T. Neally was the city engineer of the city of Topeka; D. CL Metsker was the mayor. On that date, Metsker, as mayor,, attempted to suspend Neally from his office, and place therein William Tweeddale. John F. Carter acted in concert with the mayor, and assisted in preventing Neally from exercising the duties of his office. Subsequently, Neally was restored to his office by a peremptory writ of mcmdamus issued from the-district court of Shawnee county. The judgment of that court was excepted to, and the proceedings were reviewed and affirmed by this court. (Metsker v. Neally, 41 Kas. 122.) In that case, Valentine, J., speaking for the court, observed:
“ In fact, it is not seriously disputed by the defendants that mandamus would be the proper remedy to restore a party to an office from which he had been illegally removed. The same reasons given to sustain this remedy in cases of removal apply with equal force where the occupant of an office had been illegally suspended.”
The authorities fully sustain the practice of this court that mandamus is the proper remedy to restore an officer to his-office from which he has been wrongfully removed or suspended. Spelling, in his new work upon Extraordinary Relief, (¶1576,) says:
“Mandamus is the proper remedy to restore one to the full*67 enjoyment of an office or position of trust and emolument of a public nature from which he has been wrongfully removed, or which is wrongfully withheld. There is an important distinction to be taken between cases where mandamus is sought to induct a claimant into an office already filled, and those where one actually in office has been removed or deprived of his rights and privileges therein. In the former cases, as has been shown, the incumbency of another under such color of right as constitutes him an officer defacto, rather than a mere intruder, will be a complete answer to the petition; but, where one has been wrongfully deprived of an office by the illegal appointment of another, mandamus will issue to effect his restoration, even though such appointee be in possession de facto. It is essential, however, to entitle a relator who has been removed to mandamus for his restoration that he be clearly entitled de jure to the office from which he has been removed. It is not sufficient that he show himself to be an officer defacto, but he must also show a clear legal right, and his failure to do so will warrant a refusal of the peremptory writ.”
See also Merrill, Mand., §§ 148,150, and cases cited; High, Ex. Rem. (2d ed.), § 67; People v. Scrugham, 20 Barb. 302.
The facts alleged in the writ show that the plaintiff’s term of office had not expired at the time of his removal, and also that such removal was arbitrarily made, without any sufficient cause, investigation, or trial. Therefore, upon the facts as alleged, it appears that the defendant was wrongfully and illegally removed from his office. If this action had been brought against J. H. McCasey alone, we would have declined the writ until the incumbent had been removed by a quo warranto, but this action is primarily against the board of trustees of the state charitable institutions. The trustees not only appoint the superintendent, but are authorized to adopt such rules as may be necessary for the management of the insane asylum. To them belongs its government. Before any superintendent can obtain a warrant from the auditor for his salary, the voucher must be approved by the trustees. (Laws of 1879, ch. 13; Laws of 1893, ch. 1.) If J. H. McCasey is in possession of the office room, fixtures, books,
Authorities are to the effect that where an officer voluntarily abandons an office, or when the demand for mandamus has become stale, no restoration can be secured by the writ. There is no statement in the writ showing that the plaintiff voluntarily abandoned his office, and his demand has not become stale by great lapse of time. There was no necessity for a forcible collision between the plaintiff and defendants over the office or the possession of the office room, books, records, etc., before the plaintiff could bring his cause in this court. (Feizel v. Trustees, 9 Kas. 592.) The wrongful re-' moval is alleged to have taken place on or about the 1st of March, 1894. This action was commenced in this court in less than six months thereafter. We cannot say as a matter of law, upon the allegations of the writ, that the plaintiff has been guilty of such laches as to forbid him the relief he demands. The motions to quash will be overruled. The defendants will have 10 days in which to file their answers.
The motions to quash the alternative writ of mandamus in the case of John Brun v. M. A. Householder et al. will be overruled, upon the authority of Eastman v. Householder, just decided. The defendants will have 10 days in which to file their answers.
