75 Neb. 767 | Neb. | 1906
This is an original application in this court for a writ of mandamus to compel William H. Hyland, tbe retiring officer, to deliver to tbe relator, Charles S. Coney, who, it is alleged, is tbe duly elected and qualified superintendent of public instruction for Stanton county for tbe term of two years beginning January 4,1906, and is now occupying and performing tbe duties of said office, all books, papers,
It appears that the relator received a majority of the votes cast at the November, 1905, election for the office of county superintendent of Stanton county, and that he ^ qualified for said office by taking the oath of office and filing his bond, which was properly approved; that he holds the certificate of election; that he has been recognized as such officer by the state superintendent of public instruction, and that he is now exercising the duties of the office. It is claimed that on election day he did not hold a first grade teacher’s certificate, though he has since received one, which has been made to appear as of that date, and it is upon these alleged facts that the respondent bases his right to hold over and retain possession of the property belonging to the office.
The questions presented with reference to the eligibility
Under the facts the relator is prima facie'the county superintendent, and is therefore entitled to the books, papers and other property belonging to the office and necessary for its proper administration. When the relator presented himself to the retiring officer, armed with the proper certificate of election, and duly qualified by the filing of his oath and the approval of his bond, it was the respondent’s duty to deliver to him the property appertaining to the office. The question of whether or not the relator was eligible to the office may properly be tried by quo toarranto proceedings, and this remedy is open to the respondent. This is not an open question in this state. State v. Jaynes, 19 Neb. 161; State v. Meeker, 19 Neb. 444; Cruse v. State, 52 Neb. 831.
The two principles controlling this and like cases have been clearly set forth by the supreme court of Oklahoma as follows: “As to the writ of mandamus, then, we have two settled rules as to public offices and the effects and belongings thereto: the one that mandamus will not lie to try the title to a public office, and the other, that it will lie to compel the predecessor to deliver to his successor the books, papers, records, moneys, insignia, and paraphernalia thereof when the relator shows an absolute prima facie title. No court or lawyer of today would for a moment controvert those two well settled rules of modern jurisprudence.” Ewing v. Turner, 2 Okla. 94, 35 Pac. 951. High, Extraordinary Legal Remedies (3d ed.), sec. 74; People v. Head, 25 Ill. 325; Crowell v. Lambert, 10 Minn. 295; People v. Kilduff, 15 Ill. 492, Warner v. Myers, 4 Ore. 72; State v. Archibald, 5 N. Dak. 359, 66 N. W. 234; State v. Johnson, 30 Fla. 433, 11 So. 845.
A peremptory writ of mandamus is allowed as prayed for.
Writ allowed.