6 S.D. 406 | S.D. | 1894
The defendants, constituting the president and board of trustees of the village of Egan having neglected to call an election for the officers of said village, at the time prescribed in the village charter, for the years 1893 and 1894, the circuit court, on application of an elector and taxpayer, issued its alternative writ of mandamus to the president and board of trustees, commanding them to call a village election, or show
The village of Egan was incorporated under a special charter passed by the late territorial legislature in 1881. The term Of the village officers is provided for by section 2 of chapter 1, which reads as follows: ‘‘The elective officers of the corporation shall be, one president, one recorder, three trustees, one treasurer, one justice of the peace and one marshal, which, with the exception of the justice, shall hold their office one year and until their successors are elected and qualified.” The time for holding elections for such officers is provided for by section 10, same chapter, which reads as follows: “There shall be an annual election for the elective officers therein provided on the first Monday in April in each and every year, and the polls shall be kept open from 10 o’clock in the forenoon, until 4 o’clock in the afternoon. At such election the trustees, or any two of them shall act as judges of election, and the recorder as clerk of election. ” While it is not specifically declared to be the duty of the board to give notice of the election, the duty is clearly incident to the office; and the duty of the board to call the election at the proper time is not questioned by appellants’ counsel. But it is contended by the learned counsel for the appellants that, as the time for holding the election is definitely fixed for the first Monday in April in each year, the board of trustees had no power to call an election at any other time, and the court had no p^wer, therefore, to require it so to do. While it is true, as asserted by appellants’ counsel, that the court cannot, by the writ of mandamus, impose a duty or confer a power not imposed by law, but can simply compel inferior tribunals to exercise a power which it possesses, yet we think this principle is not applicable to the case at bar. The duty to call the election at the proper time is clearly imposed upon the board as a power incident to the organization of the village, and is recognized as existing by subsequent statutes, especially by the act of the state legislature (chapter 57,
Judge Dillon, in his work on Municipal Corporations, quotes with approval the following from an English work: ‘‘The court, says Mr. Willcock, will grant a mandamus to proceed to an election of a new mayor, after the charter day has passed without such election, where the former mayor, having the power to do so, holds over, and refuses to convoke an assembly for that purpose, unless the charter restrains the right of electing to a particular time; and it will be granted for the election of bailiffs; chamberlains, coroners, and other annual officers, although not the chief officers of the corporation.” Dil. Mun. Corp. § 838. And the author adds: “So, in this country it has been decided that an election for municipal officers may be held after the charter day, and that a mandamus may be granted to compel the proper officers to give notice' thereof.” Id. § 839; People v. Town of Fairbury, 51 Ill. 149; State v. Smith, 22 Minn. 218. In the case of People v. Town of Fairbury, supra, the time for holding the annual election for the president and trustees of the town had been fixed by an ordinance on the 15th day of August in each year. That day coming on Sunday, the board gave no notice of an election. An application for a mandamus to compel the board to call an election at a subsequent day was granted, and on appeal the supreme court of Illinois held the mandamus proper, the court saying:
,. The doctrine thus laid down seems to be settled law, and applies, to all municipal corporations. The duty is imposed upon the. president and board of trustees, as incident to their powers, to call the election at the time designated by law; but their failure to perform that duty so imposed upon them does not have the effect of relieving them from the performance of this duty, and they are not relieved until the duty has been performed. As this court held in Smith v. Lawrence, 2 S. D. 185, 49 N. W. 7, the duties imposed upon public officers are imperative, and performance may be coerced by writ of mandamus. It would be intolerable that a president and board of
It is further contended by counsel for appellants that the proceedings of the court below were irregular, in this: that there were no findings of fact by the court, and no judgment rendered by the court; and for these reasons counsel insist that the case should be reversed. All presumptions are in favpr of the regularity of the proceedings of the trial court; and, in the absence of a showing to the contrary we would be required to presume that the requisite facts were proven and found by the court. But, assuming that the proceedings in the case were those only disclosed by the abstract, namely, the affidavit, alternative writ, answer and peremptory writ, there is a serious question as to whether or not the failure to render a judgment upon which the peremptory writ could be issued would not invalidate the writ if the appellants were in a position to avail themselves of the irregularity. The appellants, however, without making any motion in the court below to set aside or vacate the writ, have appealed directly from the peremptory writ itself, as appears from their notice of appeal given in their abstract, and not from any judgment or order, unless the peremptory writ itself is to be regarded as a judgment. If the
The practice at common law seems to have been followed in this state, and held applicable to peremptory writs issued by a judge as such. In such case the writ must necessarily issue without a judgment on which to base the same, as a judge, as such, can render no judgment. This was so held by the late territorial supreme court in Territory v. Shearer, 2 Dak. 332, 8 N. W. 135. That court says: ‘‘There is nothing in the objection of the appellant that the judge inserted, before his signature, the words ‘By the Court.’ He had full authority to sign it as judge. The words ‘By the Court’ would therefore be surplusage. But if there were any force in this objection it is entirely removed by the fact that the peremptory writ was immediately signed and issued by the judge. The judge having full authority to issue the wTrit himself, it Avas not necessary for him to enter an order or judgment directing its issue. And it is not necessary for the clerk to attest the writ when the same is issued by the judge at chambers.” As to the proceedings when the peremptory writ is issued by a judge see Holden v. Haserodt (S. D.) 51 N. W. 340; Black Hills Flume & Min. Co. v. Grand Island & W. C. R. Co., 2 S. D. 546, 51 N. W. 342. But, when the proceedings are before the court, we are of the opinion that our statute has made a material change in the common law practice, and that, before the peremptory writ can properly is