105 Minn. 399 | Minn. | 1908
This is a quo warranto proceeding commenced in this court to de-. termine the right of the respondent, Ambrose Hays, to the office of county superintendent of schools of Le Sueur county, Minnesota. The respondent was elected county superintendent of schools of Le Sueur county at the November general election in 1906 for a term of two years from the first Monday in January, 1907. He duly qualified, and on January 7, 1907, entered upon the discharge of his duties. It is alleged in the writ that on January 5, 1908, he accepted
The respondent in his answer admits his election and qualification, denies that the office of county superintendent is vacant, as stated in the writ, or that he neglected to perform the duties thereof, as alleged or otherwise, and alleges that at all times since his election he has been a resident, a legal voter, and an inhabitant of Le Sueur county. He also denies that he ever ceased to be an inhabitant thereof, and that he ever became an inhabitant and citizen of Mountain Lake, Minnesota.
1. The question of the effect of the neglect to perform the duties of county superintendent could not be determined in this proceeding, and therefore the only question for our determination is whether, at any time since his election in 1906, the respondent, Hays, ceased to be an inhabitant of Le Sueur county, and thus vacated the office by operation of law. The action of the county commissioners in passing the resolution declaring the office of county superintend-' ent vacant had no effect upon the rights of the respondent. The county board had no authority to vacate the office. Its powers are confined to filling an office after it has been vacated by proper judicial proceedings or by the act of the incumbent. The governor oL the state only has power to remove such an officer for cause. R. L. 1905, §§ 425, 2668.
2. Under the rule which prevails in this state, the offices of county superintendent of Le Sueur county and superintendent of schools-
3. The statute (R. L- 1905, '§ 2667-) provides that: “Every office ball become vacant on the happening of either of the following events, fore the expiration of the term of such office: * * * (4) His asing to be an inhabitant of the * * * county * * * for |hich he was elected.”
The question is whether the respondent ceased to be an inhabitant Le Sueur county, and a careful consideration of the evidence re-|rned satisfies us that he retained his residence in Le Sueur and that office was therefore not vacated. Hays, at the time of his elec-n and for some years prior thereto, lived upon a farm near Le eur Center. He had been married, but his wife had died, and his ther was keeping house for him. He owned the stock and farm-utensils on the farm, and the furniture in the house. It was his e, the place where he lived and maintained a family. Any group .stituting a distinct domestic body is a family. Carmichael v. Northwestern, 51 Mich. 494, 16 N. W. 871.
statute (R. L. 1905,
On January 3, 1908, the respondent agreed to take charge of the schools of Mountain Take and superintend them during the balance of the school year. On January 6 thereafter he did, in fact, take charge of the schools of that place and superintended the same until and including February 4. • No definite contract was made with him by the school authorities at Mountain Lake, and the evidence shows very conclusively that Hays went there with the understanding that he should give the work a trial, and that if, after the au thorities became better acquainted with him and his work, they gav him a contract to teach the schools for the following year, he would then resign his position as superintendent of schools of Le Sueui| county and remove to Mountain Lake. But this intention never wa: carried into, effect. The contract for the succeeding year was no) made, and the question of his right to keep both positions having been raised, he left Mountain Lake and returned to Le Sueur. Duii ing the time he was absent he performed the duties of county supei intendent, attended to the correspondence, and provided for holdin 'teachers’ examinations. During his absence the office work and coi respondence was looked after by Mr. Norby, who was employed Hays,for that purpose.
Something is attempted to be made out of the fact that Hays cal ried certain personal effects with him to Mountain Lake. It appea, that at first he. merely took a valise with books and clothing, that ai >er reaching there he found the quarters at his boarding place uncor fortable, and that his mother sent him a trunk which contained a quil ;and some other such small articles. It is clear to us that the respon ■ent did- not go to Mountain Lake with the intention of at the tir abandoning his home in Le Sueur county, and the absence of an ij teition to abandon a residence is equivalent to an intention to ret;
The writ is therefore discharged.