104 Minn. 252 | Minn. | 1908
Proceedings in quo 'warranto instituted in this court on the information of the attorney general to determine the right of respondents to hold and exercise the offices of chairman, clerk, and treasurer ■of school district No. 17, in Mille Gacs county. Evidence was taken before a referee appointed for the purpose, and, upon his report and the pleadings, the controversy was submitted for determination. The offices of clerk and treasurer only are in dispute. It is conceded that Gilbert Wilkes is the duly qualified and acting chairman of the board. Respondent Sandberg, who, the information alleges, claimed to be the chairman, now makes no claim to the office. We have for determination, then, (1) whether respondent Gadeen is the duly qualified clerk; and (2) whether respondent Brant is the duly qualified treasurer of the district.
1. Gadeen was elected to the office of clerk at the annual election in 1904 for the term of three years, and he duly qualified and entered upon the discharge of the duties of the office. His term expired in
He testified that he took and subscribed the oath of office required by statute, and filed the same with Ladeen, who was then clerk. That he took the oath is corroborated by the justice of the peace before whom it was taken, and, while Ladeen denies that it was ever filed with him, we conclude that he is mistaken, and that it was properly filed in his office. In reaching this conclusion we do not consider the declaration of Freer to the effect that he had filed his oath of office or was about to, which respondent insists was incompetent evidence. The oath of office so taken and filed was in the form prescribed by the state superintendent of public instruction, as follows:
Form of oath to be administered to school district officers upon qualifying.
I do solemnly swear that I will support the Constitution of the United States, the Constitution of the state of Minnesota, and faithfully discharge the duties of my office to the best of my judgment and ability. So help me God. . Chas. L. Freer.
Subscribed and sworn to before me the 22d day of July, 1907. .
T. E. Potts,
Justice of the Peace.
It is insisted that this oath was wholly insufficient and ineffectual as a qualification of Freer, because it did not name the office the duties of which he swore faithfully to perform. The objection is not well taken. The oath is in the language prescribed by statute and the constitution (section 8, art 5, Const.; section 2677, R. L. 1905), and was taken and filed with reference to the office of clerk to which he had been elected and under which he asserts the right to assume the duties thereof. Though the office might well have been designated,
2. Respondent Brant was duly elected treasurer of the district at the annual election in 1905, and he duly qualified, and has since continued in the discharge of the duties of the office. His term expires in July of the present year. It is claimed by the relator that he resigned his office in August, 1907, and that H. G. Booth was duly appointed to fill the vacancy thus created. Booth qualified, and now claims the office. The only question on this branch of the case is whether Brant ever intentionally and of his own free will resigned the office. That he signed what purported to be his voluntary resignation is not questioned, but it is urged in his behalf that it was forced from him by duress and coercion, that it was not his voluntary act, and consequently was of no force or effect. We sustain this contention.
To constitute a complete and operative resignation of a public office there must be an intention to relinquish a part of the term, accompanied by the act of relinquishment. Biddle v. Willard, 10 Ind. 62. A written resignation delivered to the board or officer authorized to receive it and to fill the vacancy created thereby would be prima facie evidence of an intention to relinquish the office, but it is not conclusive. A resignation obtained by coercion or fraud, if not void, is at least voidable, and may be repudiated. People v. Voorhis, 66 Hun, 88, 20 N. Y. Supp. 941. Coercion or duress exists where one is by the unlawful conduct of another induced to do or perform some act under circumstances which deprive him of the exercise of his free will. 7 Cyc. 270.
The evidence in this case sufficiently establishes the fact that Brant was wrongfully and unlawfully induced to sign a prepared resignation, and in doing so he did not exercise his free will nor intend by «the act to relinquish or give up the office. It appears from the record that for two or three years past there has been considerable wrangling and ill feeling between different factions in this school district, that Brant belonged to one faction, and Wilkes and Freer, the chairman and clerk of the board, to another. It is evident that these two
Our conclusion, therefore, is that Gilbert Wilkes is chairman, Charles L. Freer is clerk, and Charles Brant is treasurer of the school district in question, and that Ladeen should be ousted from the office of clerk. Let judgment be entered accordingly.