26 S.E. 929 | N.C. | 1897
Lead Opinion
The plaintiffs instituted this action alleging that they were duly and legally appointed Commissioners of Granville county by the Resident Judge of the 5th Judicial District, by virtue of the power vested in him by the Act of 1895, Oh. 135, praying for a mandamus compelling the defendants to restore them to their said office and to permit them to participate in all respects in the deliberations of the Board of Commissioners for the county. The defendants deny the plaintiffs right to be inducted into office on the ground that the judge had no authority to make the appointment, and that the same was void in law. Section 5, of the said Act is in these words:
“That whenever as many as five electors of the county make affidavit before the Clerk of the Superior Court, at any time after the election of the County Commissioners, that they verily believe that the business of the county, if left entirely in the hands of the three Com missioners elected by the people, will be improperly managed, that then upon the petition of two hundred electors of said county, one-half of whom shall be freeholders and so certified by the Clerk of the Superior Court, made to the judge of the district, or judge presiding therein, it shall be the duty of said judge to appoint two honest and discreet citizens of said county, who shall be of a political party different from that of a majority of the Board of Commissioners, who
Facts: From the confused proceedings, it appears that five electors appeared before the Clerk and offered to file a written affidavit, as required by the sa;d Act, vu.th a list of petitioners. The clerk declined to receive the papers, as not being in proper form. The .affiants made an affidavit before the Judge at Chambers, certifying to the clerk's refusal. Notice was issued by the judge to the clerk to show cause why he did not accept the oath and affidavit offered. The clerk certified that two hundred electors had not signed the petition, and that among those who had signed there were not one hundred freeholders. The judge allowed the petitioners to amena the petition with other names to supply those from two townships from which the books were not in the office. The judge then ordered the tax books and registration books to be brought into court, and, upon examination of the books and from oral testimony, “the court doth find as a fact that more than two hundred electors of said county, of whom more than one hundred are freeholders in said county, have signed said petition.” The judge then ordered the clerk to “forthwith” certify to said one hundred persons being freeholders and return said petition and all other papers in the case to said court “at once.” The clerk refused to so certify. The judge then appointed the plaintiffs Commissioners of G-ranville County “with all the powers and duties of a Commissioner of said cuunty.”
The plaintiffs and defendants met together, organized and transacted some business for an hour or two, when de> fendants, being of opinion that the appointment of the plaintiffs was invalid and void, declined to recognize them as members of the board, and to allow them to participate
The written statements, from which the above facts are extracted, were offered in evidence on the trial, but excluded by his Honor, and the defendants excepted and appealed.
The identical facts, more in detail, will be found in the case of Waller v. Sikes, decided at this term. These facts were offered for the purpose of showing that the District Judge had no jurisdiction ol' the matter, when he appointed the plaintiffs as above recited and that his action was void. No summons had issued and there was no action pending in which said appointment was made.
We will not indulge in many remarks on quo warranto and mandamus, as we think that an action for mandamus is the proper proceeding in this case. In England it was a prerogative Writ, when no other remedy could be had, and had many refinements, issuing only at the pleasure of the court. By Statute IX Anne, Oh, 20, the remedy was made one of right, and the general rules of pleading and practice were made applicable to mandamus as in other personal actions. At common law the return to a writ of mandamus could not be traversed, and if the matters set forth were sufficient in law, the defendant had judgment to go without day. If the return was false, the remedy of the person aggrieved thereby was an action on the case for making a false return; and if the plaintiff proved the matters of fact false he recovered damages and costs. By IX Anne, Oh. 20 in certain cases all or any of the material facts set forth in the return may be traversed. Our Statute, 1836, Ch. 97, Bee. 5, The Code, Sec. 623, extends this provision to all cases, and upon a traverse of any of the material facts “the summons, pleadings and practice shall be the same as is prescribed for civil actions,” and if .an
This prerogative writ has never obtained in our State. Scire facias and quo warranto are abolished, and civil action substituted {The Oode, Sec. 603), and mandamus is regulated as an action by The Oode, Sec. 622. Remedies are •now by action and special proceedings {The Oode, Sec. 125), and civil actions shall be commenced by issuing a summons. The Oode, Sec. 199.
"When a plaintiff sues for an office occupied by another, quo warranto is the proper remedy, as in Cloud v. Wilson, 72 N. C., 155, but when the office is vacant by reason of amotion, the remedy is mandamus as in Doyle v. City of Raleigh, 89 N. C., 133, and this distinction reconciles the decisions.
The plaintiffs’ complaint alleges that they were “duly and legally appointed commissioners” by the resident judge, and this is denied by the answer. The burden of proof was on the plaintiffs, which they, failed to make, and now rely upon their prima facie title by reason of their appointment by tñe judge of the district, and the fact that they had once been in the office and afterwards excluded. The defendants offered proof of the invalidity of the plaintiffs’ title, because the judge, who appointed, had no jurisdiction of the matter, L e., it was coram non judice. It is true, that the acts of defacto officers are conclusive on third parties, but we fail to see how such de facto acts tend in aDy degree to show jurisdiction in the appointing power or the legality of the plaintiffs’ title. When the clerk refused to certify, we think the remedy of any one of the petitioners or affiants was an action for a mandamus to show cause, &c., but the judge assumed jurisdiction, heard evidence, found facts, when there was no one to contest such
1. That the affidavit be filed with the clerk with two hundred petitioners, one-half freeholders.
2. That the clerk shall have certified these facts to the judge in the district.
The power of the judge then was to appoint, and nothing more. His Honor finds as a fact that the plaintiffs failed to take an oath to support the Constitution of the State and United States as required by law. We then have the question, Can the court order that the plaintiffs be inducted or restored to the office of commissioner without showing a legal right to it? Mandamus by the Statute of Anne, Oh. 20, is an effectual remedy; First, for refusal of admission where a person is entitled to an office, and Secondly, for a wrongful removal where a person is legally possessed. 3 BI. Com. 264. “The prosecutor (plaintiffs) must be clothed with a clear legal and equitable right to something which is proper by the subject of the writ, as a legal right by virtue of an Act of Parliament.” Tapping on Mandamus, pp. 10, 12, .28, 321. £ ‘Mamdamius is a proceeding to compel a defendant to perform a duty which is owing to the plaintiff, and can be maintained only on the ground that the relator has a present clear, legal right to the thing claimed, and that it is the duty of the defendant to render it to him.” Brown v. Turner, 70 N. C., 93. High, in his Extraordinary Legal Remedies, after discussing in detail quo warranto, amotion, induction, de facto, restoration and mandamus, concludes under the latter head, Section 70: “It is to be borne in mind that the rule as above stated is applied only in favor of those w ho are clearly entitled de jure to the office from which they have been removed. And when the writ is sought to compel
The principle of these authorities seems reasonable. It is in harmony with that which governs in all other pern sonal actions. It seems extraordinary that a court should feel warranted-in commanding the defendants to restore a person to office from which they have removed him for what appeared to them to be a sufficient cause, when the very next day they might exercise the same right on precisely the same grounds. Why restore and drive the parties to the cost and delay of another action to determine the identical issue raised by the pleadings in this action? Suppose the office was now occupied by an intruder, or otherwise, making quo warranto the proper action; in'that
Under our system, at this day, it appears to us that the better practice is to try the issue raised by the pleadings in the present action and save the delay, trouble and expense of another action.
Reversed.
Dissenting Opinion
dissenting: This was an application for mandamus, commenced by summons and complaint to compel the defendants to restore the plaintiffs to the office of Commissioners of the County of Granville, from which office they had been ejected and removed by the defendants, who were also Commissioners of the County, elected at the general election of November, 1890. The plaintiffs had been received as commissioners by the defendants, and they had conjointly acted in the organization of the board, and in the transaction of other public business. At the time of their expulsion by the defendants, the plaintiffs were the appointees of his Honor, A. W. Graham, a Judge of the Superior Court, who in the appointment acted by virtue of the po^er contained in Section 5, Chapter 135, of the A.cts of 1895. The old writ of mcmdamus was not abolished by the provisions of the The Code of Civil Procedure, as was that of quo warranto. The act of 1871-72, Ch. 75, only requires that applications for mandamus should be commenced by summons and verified complaint. It is, hov <3ver, no longer regarded as an extraordinary remedy and as one of high prerogative, but has become to be a writ of right to be issued as ordinary process in any
It seems, -then, that mandamus was the proper action for the plaintiffs to have instituted upon the facts set out in their complaint. Indeed, it was admitted by defend
In support of the defendants’ position, we have been referred to the decisions of this court in Worthy v. Barrett, 63 N. C., 199; Doyle v. City of Raleigh, 89 N. C., 133; and Ellison v. City of Raleigh, Ibid., 125.
The controlling fact in Worthy v. Barrett, was not like any fact in the case before us. There, the petitioner was a sheriff elect, whose bond was refused, and who was denied induction into his office by the defendants, who were commissioners of the county, on the ground that he was personally disqualified by constitutional inhibition from holding any office in North Carolina. The court held that the matter being perfectly clear that the plaintiff could not hold the office, they would not do the vain thing of compelling the commissioners to put a man into an office who ought not to serve. The ground of this ruling was that it appeared clearly from the admissions in the
The facts in Doyle's Case, supra, were, that he was elected an alderman of tbe city of Raleigh, was inducted into the office, acted with tbe other aldermen and was ejected from the board on the ground that be was, under the Constitution, incompetent to bold tbe office. No successor w as appointed by tbe board to fill tbe vacancy caused by bis expulsion. Tbe court held that be sought bis appropriate remedy to be restored to his office in mandamus proceedings. In tbe case before us, the plaintiffs bad been appointed under tbe authority of law, bad been inducted, bad acted with tbe defendants as a board of commissioners; and were expelled from tbe councils of the board, and no successors have been appointed. If mandamus was a proper proceeding in Doyle’s case, certainly it is tbe proper remedy for the plaintiffs in this action Tbe court did not
In Ellison's Case, supra, the plaintiff was a member of the board of aldermen of the city of Raleigh, duly-elected, and had attended three meetings with his associates. Pie was ejected, and' his successor was appointed and qualified. Mandamus was resorted to by the plaintiff, and this court held merely that the action of the board of aldermen was wrongful, but that the plaintiff could not be restored in mandamus proceedings for the reason that his successor bad been appointed under color of competent authority, and was a de facto officer, and that the title to the office was therefore in controversy between him and his successor. The matter was narrowed down to a contest between the plaintiff and his successor for the office of aider-man, and the title had to be tried by quo warranto. Nothing else was decided'in that case.
These decisions of our court are in harmony with some of the best text writers on mandamios and quo warranto. In High on Extraordinary Remedies, it is said that “in cases where relief has been sought to determine disputed questions of title to and possession of public offices, the courts have almost uniformly refused to lend their aid by man-
Decisions can be found on both sides of the question, in rhe courts of the different States, as to whether the plaintiff in mandamus should be compelled to show more than a prima faoie case. Rut I am of the opinion that in cases where mandmius is the proper remedy, as it is in the case before us, the title to the office cannot be tried, and that when the claimant shows an appointment or certificate of election from the proper source the saméis prima faoie evidence in favor of the holder, and entitles him to be re
The object of the defendants undoubtedly was to take a short cut to thwart the action of the Judge by ejecting summarily the plaintiffs who were his appointees, without waiting for the due process of the law. If such proceedings were tolerated, the law would soon be superseded by violence. Under the appointment of Judge Graham, the plaintiffs were de facto officers, if not officers de jure. (But upon this question we are not passing any judgment, nor do we intend to do so in this proceeding.) The defendants or any citizen of Granville county had the clear, legal right, under Sub-Section 1 of Section 607 of The Code, to institute a proceeding in the nature of quo warranto against the plaintiffs to have them removed from the office they were filling at the time of their expulsion,- if it was
Concurrence Opinion
concurring in the dissenting opinion: The basis of the authority of the Judge to appoint the two additional commissioners is the substantive and substantial fact that two hundred electors, one hundred of whom are freeholders, have petitioned him to make such appointment, and not the merely formal requirement that the clerk has certified that such petitioners are electors and freeholders. When the petition is handed the Judge with the requisite number of names, and the fact that there are 200 electors and 100 of them are freeholders, is shown, as in this case, by better evidence than the certificate of the clerk, to-wit, by the primary evidence on which the clerk should have acted, it would Le sacrificing substance to form to permit a contumacious clerk, who might be ignorant of his duty or perhaps moved by improper motives, to nullify an Act of the General Assembly by his veto. The Judge, having found the substantive fact that 200 electors, 100 of whom are freeholders, have signed the petition, it is a matter of no sort of consequence that the clerk has refused to make the certificate, the object of which is merely to save the Judge the labor of finding how the fact is. No part of the duty of appointment is vested in the clerk. When the Judge found that the state of facts existed which required him to
Lead Opinion
(Syllabus by FAIRCLOTH, C. J.) The plaintiffs instituted this action alleging that they were duly andlegally appointed Commissioners of Granville County by the resident Judge of the Fifth Judicial District, by virtue of the power vested in him by Laws 1895, chap. 135, praying for a mandamus compelling the defendants to restore them to their said office and to permit them to participate in all respects in the deliberations of the Board of Commissioners for the county. The defendants deny the plaintiff's right to be inducted into office on the ground that the Judge had no authority to make the appointment, and that the same was void in law. Sec. 5 of the said Act is in these words:
"That whenever as many as five electors of the county make affidavit before the Clerk of the Superior Court, at any time after the election of the County Commissioners, that they verily believe that the business of the county, if left entirely in the hands of the three Commissioners elected by the people, will be improperly managed, that then upon the petition of two hundred electors of said county, one-half of whom shall be freeholders and so certified by the Clerk of the Superior Court, made to the Judge of the district, or Judge presiding therein, it shall be the duty of the said Judge to appoint two honest and discreet citizens of said county, who shall be of a political party different from that of a majority of the Board of Commissioners, who shall, from their (240) appointment and qualification, by taking the oath required for County Commissioners, be members of said Board of Commissioners in every respect," etc.
Facts: From the confused proceedings, it appears that five electors appeared before the Clerk and offered to file a written affidavit, as required by the said Act, with a list of petitioners. The Clerk declined to receive the papers, as not being in proper form. The affiants made an affidavit before the Judge at chambers, certifying to the Clerk's refusal. Notice was issued by the Judge to the Clerk to show cause why he did not accept the oath and affidavit offered. The Clerk certified that two hundred electors had not signed the petition, and that among those who had signed there were not one hundred freeholders. The Judge allowed the petitioners to amend the petition with other names to supply those from two townships from which the books were not in the office. The Judge then ordered the tax books and registration books to be brought into Court, and upon examination of the books and from oral testimony, "the Court doth find as a fact that more than two hundred electors of said county, of whom more than one hundred are freeholders in said county, have signed said petition." The Judge then ordered the Clerk to *165 "forthwith" certify to said one hundred persons being freeholders and return said petition and all other papers in the case to said Court "at once." The Clerk refused to so certify. The Judge then appointed the plaintiffs Commissioners of Granville County "with all the powers and duties of a Commissioner of said county."
The plaintiffs and defendants met together, organized and transacted some business for an hour or two, when defendants, being of opinion that the appointment of the plaintiffs was invalid and void, declined to recognize them as members of the board, and to allow them to participate in their meetings, and this action is brought to reinstate the (241) plaintiffs and have their right declared by the Court.
The written statement, from which the above facts are extracted, was offered in evidence on the trial, but excluded by his Honor, and the defendants excepted and appealed.
The identical facts, more in detail, will be found in the case of Wallerv. Sikes, ante, 231. These facts were offered for the purpose of showing that the District Judge had no jurisdiction of the matter, when he appointed the plaintiffs as above recited and that his action was void. No summons had issued and there was no action pending in which said appointment was made.
We will not indulge in many remarks on quo warranto and mandamus, as we think that an action for mandamus is the proper proceeding in this case. In England it was a prerogative writ, when no other remedy could be had, and had many refinements, issuing only at the pleasure of the Court. By statute 9 Anne, chap. 20, the remedy was made one of right, and the general rules of pleading and practice were made applicable tomandamus as in other personal actions. At common law the return to a writ of mandamus could not be traversed, and if the matters set forth were sufficient in law, the defendant had judgment to go without day. If the return was false, the remedy of the person aggrieved thereby was an action on the case for making a false return; and if the plaintiff proved the matters of fact false he recovered damages and costs. By 9 Anne, chap. 20, in certain cases all or any of the material facts set forth in the return may be traversed. Our statute, 1836, Chap. 97, Sec. 5, The Code, sec. 623, extends this provision to all cases, and upon a traverse of any of the material facts "the summons, pleadings and practice shall be the same as is prescribed for civil actions," and if an issue of fact is raised by the pleadings, it must be decided by a jury. The Code, sec. 623; Tucker v. Justices,
This prerogative writ has never obtained in our State. Scirefacias and quo warranto are abolished, and civil action substituted (The Code, sec. 603), and mandamus is regulated as an action by The Code, *166 sec. 622. Remedies are now by action and special proceedings (The Code, sec. 125), and civil actions shall be commenced by issuing a summons. The Code, sec. 199.
When a plaintiff sues for an office occupied by another, quo warranto is the proper remedy, as in Cloud v. Wilson,
The plaintiffs' complaint alleges that they were "duly and legally appointed Commissioners" by the resident Judge, and this is denied by the answer. The burden of proof was on the plaintiffs, which they failed to make, and now rely upon their prima facie title by reason of their appointment by the Judge of the district, and the fact that they had once been in the office and afterwards excluded. The defendants offered proof of the invalidity of the plaintiffs' title, because the Judge who appointed had no jurisdiction of the matter, i. e., it was coram non judice. It is true that the acts of de facto officers are conclusive on third parties, but we fail to see how such de facto acts tend in any degree to show jurisdiction in the appointing power or the legality of the plaintiffs' title. When the Clerk refused to certify, we think the remedy of any one of the petitioners or affiants was an action for a mandamus to show cause, etc., but the Judge assumed jurisdiction, heard evidence, found facts, when there was no one to contest such findings, and appointed the (243) plaintiffs Commissioners of the county. In order to confer jurisdiction, under Sec. 5 of the said Act, it was necessary:
1. That the affidavit be filed with the Clerk with two hundred petitioners, one-half freeholders.
2. That the Clerk shall have certified these facts to the Judge in the district.
The power of the Judge then was to appoint, and nothing more. His Honor finds as a fact that the plaintiffs failed to take an oath to support the Constitution of the State and United States as required by law. We then have the question, Can the Court order that the plaintiffs be inducted or restored to the office of Commissioner without showing a legal right to it?Mandamus by the statute of Anne, chap. 20 is an effectual remedy; First, for refusal of admission where a person is entitled to an office, and Secondly, for a wrongful removal where a person is legally possessed. 3 Bl. Com. 264. "The prosecutor (plaintiffs') must be clothed with a clear legaland equitable right to something which is proper by the subject of the writ, as a legal right by virtue of an Act of Parliament." Tapping on Mandamus, pp. 10, 12, 28, 321. "Mandamus is a proceeding to compel a defendant to perform a duty which is owing to the plaintiff, and can be maintained only on the ground that the *167
relator has a present clear legal right to the thing claimed, and that it is the duty of the defendants to render it to him." Brown v. Turner,
The principle of these authorities seems reasonable. It is in harmony with that which governs in all other personal actions. It seems extraordinary that a Court should feel warranted in commanding the defendants to restore a person to office from which they have removed him for what appeared to them to be a sufficient cause, when the very next day they might exercise the same right on precisely the same grounds. Why restore and drive the parties to the cost and delay of another action to determine the identical issue raised by the pleadings in this action? Suppose the office was now occupied by an intruder, or otherwise, makingquo warranto the proper action; in that event it is conceded that the relator would be held to strict proof of a clear title. Does (245) that circumstance change the quantum of proof because the action is called by a different name, when the object and facts are identically the same in each? If so, it must be an exception to the rule in all other personal actions.
Under our system, at this day, it appears to us that the better practice is to try the issue raised by the pleadings in the present action and save the delay, trouble and expense of another action.
Reversed. *168