86 Neb. 758 | Neb. | 1910
This is an original application for a writ of mandamus to compel the respondent to deliver to the relator all of the books, papers, records, moneys and other property belonging to the'office of county superintendent of public instruction of Dakota county, and to forthwith vacate the room in the court house of said county set apart for the use of the county superintendent, and deliver possession thereof to the relator.
In November, 1909, the relator was elected county superintendent of Dakota county, and the canvassing board issued to him a certificate of election. He thereupon took the oath of office, and executed a lawful bond which was duly approved. Relator then demanded possession of the aforesaid room and property. The respondent refused to comply with the demand, and alleges in justification of her conduct that the relator at the time he was elected, in 1909, did not hold a teacher’s first grade certificate. It appears that the relator held such a certificate in 1909, but the certificate expired October 20. Prior thereto he took a teacher’s examination before the county superintendent of Thurston county, and completed the examination October 16. As provided by law, the questions propounded to him and his answers thereto were transmitted to the state superintendent of public instruction. November 6, four days after the day of election, the state superintendent certified to the county superin
Counsel further argues that by the terms of the statute the relator- was ineligible to hold said office or to be elected thereto November 2, 1909, and therefore there was no election of a county superintendent in Dakota county in said year. That question we shall not determine in this action. The certificate of election and the oath and bond conform to law; the relator’s prima facie title to said office is thereby established, and he is entitled to the possession of the books, money, and other property relating to said office. State v. Jaynes, 19 Neb. 161; Cruse v. State, 52 Neb. 831; State v. Hyland, 75 Neb. 767; Ewing v. Turner, 2 Okla. 94.
Counsel for the respondent suggests that in State v. Quible, ante, p. 417, we considered and determined the eligibility of the relator to hold office, and that we ought
The resjxmdent suggests that, inasmuch as she has qualified as a hold-over county superintendent, we cannot issue the writ without in effect passing upon her title to said office, and this we ought not to do in this action, unless we consider and determine the relator’s eligibility to hold said office. The respondent misapprehends her status. The relator is holding the office of county superintendent of Dakota county, and the purpose of this action is to require the respondent to deliver to that occupant the room and chattels pertaining thereto. A compliance with our judgment in the instant case will in no manner prejudice the right of respondent to maintain an action in quo warranto to determine the question of title to said office should she desire to do so.
A peremptory writ of mandamus is allowed as prayed for.
Writ allowed.