129 N.W. 357 | N.D. | 1910
Appellant brought this action under the provisions o£ chapter 25, Code of Civil Procedure (Rev. Codes 1905, §§ 7349 et. seq.), to try title to the office of superintendent of schools of Oliver county. Defendant demurred to the complaint upon the ground that the same does not state facts sufficient to constitute a cause of action,, which demurrer was sustained, and plaintiff electing to stand on the complaint, judgment in defendant’s favor was entered, from which)
Appellant’s counsel contend that, because of respondent’s ineligibility to hold the office, his election was void, and that consequently plaintiff’s right to the office still continues, and will continue until a. qualified person has been elected and has qualified. That such election was void, we entertain no doubt. Such is practically the unanimous' voice of the authorities. 23 Am. & Eng. Enc. Law, 2d ed. p. 338 and cases cited; Sheridan v. St. Louis, 2 A. & E. Ann. Cas. 480, and cases, cited in note on page 485 (183 Mo. 25, 81 S. W. 1082). The election being a nullity, it inevitably follows, assuming the constitutionality of § 764, Rev. Codes 1905, which we will hereafter consider, that appellant is entitled to continue in the office until such time as her suc
We will determine the question whether § 764, Rev. Codes afore-said is constitutional. This section is as follows: “There shall be elected in each organized county, at the same time other county officers are -elected, a county superintendent of schools, whose term of office shall be two years, commencing on the first Monday in January following his election, and until his successor is elected and qualified. . . .” Respondent’s counsel contends that this section violates § 150 of the Constitution, which reads: “A superintendent of schools for each county shall be elected every two years, whose qualifications, duties, powers, and compensation shall be fixed by law.” It is argued by respondent’s counsel that such constitutional provision clearly fixes the term at two years, and hence the legislature is powerless to provide that the in.cumbent of the office may hold until his successor is elected and qualified. Among other things they say: “The intention of the framers of the Constitution is clearly indicated, because under § 173 those county officers whom the framers of the Constitution intended should
It follows from what we have above held that plaintiff has such a special interest as will enable her to maintain this proceeding. See Taylor v. Sullivan, 45 Minn. 309, 11 L.R.A. 272, 22 Am. St. Rep. 729, 47 N. W. 802, and cases cited; also 15 Cyc. Law & Proc. pp. 403, 404; Chandler v. Starling, 19 N. D. 144, 121 N. W. 198. Respondent’s counsel cite and rely on State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025, as holding that plaintiff has not such a special interest ;as will enable her to maintain the action, but such decision was under §§ 5345 et seq., Compiled Laws 1887, which vastly differ from § 7351, Rev. Codes 1905, under which the case at bar was instituted. The lat'ter section expressly provides that a person having a special interest may maintain such action, and such was the decision in Wishek v. Becker, 10 N. D. 63, 84 N. W. 590.
But it is contended by respondent’s counsel that plaintiff surrendered bhe office to respondent, and by so doing she ceased to have any further special interest entitling her to maintain the proceeding. It is no doubt "true that if plaintiff voluntarily turned such office over to defendant, :she cannot bring the action. Such is the rule announced in 29 Cyc. Law & Proc. p. 1418, citing State ex rel. Worrell v. Peelle, 124 Ind. 515, 8 L.R.A. 228, 24 N. E. 440; State ex rel. Birkhauser v. Moores,
It nowhere appeal’s that she was a candidate for re-election at the general election in 1908. The case of People ex rel. Drew v. Rogers, 118 Cal. 393, 46 Pac. 740, 50 Pac. 668, relied on by respondent’s counsel, has no application to the facts in the case at bar, and does not support their contention. There the relator had voluntarily surrendered the office to another on the supposition that the latter had been duly elected and was entitled thereto. Subsequently a citizen and third party successfully contested such election, on the ground of the ineligibility of such incumbent to hold the same. After such election was adjudged void a vacancy was declared, and defendant was appointed to fill the same. Thereafter relator, the former incumbent, sought to regain possession, of the office which he had previously voluntarily surrendere|d, and it was very properly held that he could not recover.
Respondent’s last contention is devoid of merit. It is based upon the false assumption that plaintiff was a defeated candidate at the 1908 election. No such fact is disclosed by the record. But conceding such to be the fact, a complete answer to such contention is the fact that plaintiff asserts no right under such election, but, as before stated, she bases her right to recover upon the fact that her successor has not been elected and that she is entitled to hold over until such event takes¡ place.
Eor the above reasons the demurrer was improperly sustained, and the judgment must be reversed and the cause remanded for further proceeding according to law.