17 Haw. 1 | Haw. | 1905
OPINION OP THE COURT BY
This is an application for a writ of mandamus to compel the respondent to approve or pass upon'the sufficiency of the bond of the petitioner as a member of the board of supervisors of the county of Kauai, under section 21 of Act 39 of the Laws of 1905, known as the County Act.
The petitioner sets forth in substance that he was a candidate for the office of supervisor at large for the county of Kauai at the election held June 20, 1905, that he received a majority of all the votes cast at said election for said office, that he received a certificate of election and took the oath of office, and that on July 1, 1905, he presented to the respondent his bond and requested him to approve the sufficiency thereof, but that the respondent refused and' still refuses so to do although, it is alleged, he admitted the sufficiency of the bond and approved the sufficiency of another similar bond.
The respondent sets forth 'as his reason for refusing to approve
The point that is perhaps most relied upon by the respondent is that the court ought not by mandamus to compel the performance of an act that would work a public or private mischief, or compel compliance with the letter of the law in disregard of its spirit or in aid of a palpable fraud. As the respondent says in his answer, “It seems but a reasonable and safe view to take, that a judge, whose special duty it should be to promote the public good, should hesitate to help induct into office of a highly important and responsible nature, one who is gravely charged
The answer to this contention is that it does not appear that the nomination papers were fraudulent or forged, and that the judge is not given any jurisdiction in passing upon the sufficiency of the bond to decide upon the validity of the nomination papers. Neither the petitioner nor any one else has been convicted of forging the nomination papers, nor has the validity or invalidity of those papers been determined in quo warranto or any other proceedings. It is true that an officer who is charged with the duty of approving the bond of another officer is not obliged to approve a bond presented by any person. It is his duty to approve the bond of only the person entitled to the office, and yet all that he can require is proper credentials of the applicant or a prima facie showing that the applicant is entitled to the office; he cannot in general enter into an investigation for the purpose of passing upon the validity of those credentials or at least the validity of the acts leading up to the acquisition of those credentials. The approval of the bond does not assume the validity of the election but is merely one step in the process by which the applicant may be put in a position to show an apparent right or to contest proceedings that may be brought questioning his title to the office. How, for instance, in the present case, could the petitioner sustain his right to the office in the quo warranto proceedings in the absence of the approval
In State v. Plambeck, 36 Neb. 401, the county judge refused to approve the bond of a county supervisor on the ground that he had not been appointed by the proper authorities. The court held that the judge was compellable by mandamus to approve the bond in case he found it sufficient, saying, among other things, that,
“The object and purpose of this action is not to induct the relator into an office already filled by another; it is to compel the respondent to approve his official bond, a duty imposed upon him by law, thereby to better enable the relator to test his title to the office in a proper proceeding before a competent tribunal, in which the incumbent of the office could be heard in his own behalf. Although the question of strict title to the office in dispute cannot be determined in a collateral proceeding like this, sufficient investigation may be made to ascertain whether the certificate of appointment held by the relator is prima facie evidence of title. If relator makes claim to the office by virtue of color of title, he was entitled to have the respondent approve his bond, the sufficiency of the bond tendered being admitted. * * * At least, the appointment of the relator is pmma facie evidence of title to the office; hence it was the duty of the respondent to have approved the bond of the relator. The statute confers no authority or power upon the officer whose duty it is to approve official bonds to pass upon or decide the validity of the claims to an office under conflicting commissions, nor can such approving officer refuse to approve the official bond presented to him by one claiming the office under color of title, even though the office may at the time be filled or claimed by another.”
In Beck v. Jackson, 43 Mo. 117, a writ of mandamus was
“This is not a proceeding asking to be inducted into the office; it is merely a demand that the respondent shall proceed to perform a duty devolved on him by law; and for a refusal or neglect to perform, the relator is remediless unless the court issues the writ. The commission issued by the governor was at least prima facie evidence of title to the office, and, if its validity or legality should be disputed, that question can only be determined by a proceeding in the nature of a quo warranto, * * *” See also State v. Shannon, 133 Mo. 139.
Another contention much relied upon by the respondent is that he ought not to be compelled to pass upon the sufficiency of the bond while there is pending a quo warranto proceeding to test the .petitioner’s title to the office. From what has already been said the fact that such quo warranto proceeding was pending would perhaps be an additional reason for passing speedily upon the sufficiency of the bond, so as to enable the petitioner to defend himself properly in that proceeding. The cases relied upon by respondent’s counsel to the contrary, namely, Hannon v. Commissioners, 89 N. C. 123, People v. Warfield, 20 Ill. 159, and Lewis v. Commissioners, 14 Ch. St. 515, are not in point. In Speed v. Common Council, 97 Mich. 198, it was held that the common council should be required by a writ of mandamus to approve the bond of one claiming to be city councilor who showed proper credentials therefor, notwithstanding the pendency of quo warranto proceedings to determine the title to the office. In State v. Commissioners, 31 Ch. St. 451, a peremptory mandamus was awarded to compel the commissioners to proceed to pass upon the sufficiency of the bond of a county recorder elect, and, if they found the bond sufficient, to approve the same, notwithstanding that proceedings were pending in regard to the title to the office. The court said:
“The section impliedly imposes upon the county commission
The court held this ground insufficient. See also Murfree on Official Bonds, Sec. 320. It may be added that the quo warranto proceedings in the present case had not been instituted at the time when the respondent declined to pass upon the sufficiency of the bond. This alone might be a sufficient .answer to the respondent’s contention. See State v. Commissioners, supra, at page 456.
Two minor contentions are made by respondent’s counsel, (1) that mandamus does not lie where there is a right of appeal from the action complained of, and (2) that the passing upon the bond is a judicial act and that mandamus will not issue to compel the performance of a judicial act in a particular manner. Without conceding that mandamus would not lie under the circumstances, even if an appeal would lie, it is not altogether clear that an appeal would lie from the disapproval of the bond, but in this case, as we understand it, the respondent has not passed upon the sufficiency of the bond at all, either by way of approval or by way of disapproval, but has postponed action thereon. In such case he can be required to act. Likewise, assuming that the act is of a judicial or discretionary nature, the judge may be compelled to act, even if not in a particular man