1. To entitle the defendant to invoke the rule of law for which he contends, it must appear that he has a colorable title to the office, and was in possession of it, and discharging the duties thereof under a claim of right. The return shows that in June, eighteen hundred and ninety-two, he was elected to the office in question, and, under the statute, was entitled to hold it for a term of two years, or until his successor was chosen and had qualified: Hill’s Code, § 2586. An examination of the writ discloses that in June, eighteen hundred and ninety-four, the plaintiff was chosen as his successor, and qualified as required by law (Hill’s Code, § 2587); hence the defendant’s term of office had expired, unless he had a private interest in the ensuing term by reason of the plaintiff’s alleged ineligibility. The right of an officer to hold over after the expiration of his term exists only *559in cases where there is no legally elected and qualified successor, for when the rights of the successor vest, those of the incumbent terminate: State v. Bemenderfer, 96 Ind. 374. If the election of the plaintiff was not legally authorized, the defendant would continue to hold the office by force of the express provisions of the statute: State ex rel. Everding v. Simon, 20 Or. 365 (26 Pac. 170); Loring v. Benedict, 15 Minn. 198; People v. Tilton, 37 Cal. 614. The defendant being in office by virtue of a prior election, was not a mere usurper, (Hamlin v. Kassafer, 15 Or. 456; 3 Am. St. Rep. 176, 15 Pac. 778,) and the statute which provides that he shall hold the office until his successor is elected and qualified gives him a colorable title; and, if it should be found in a proper proceeding that the plaintiff is ineligible, he would have a private interest in the term which would entitle him to hold over: Taylor v. Sullivan, 45 Minn. 309. When a certificate of election has been issued to another, who has qualified thereunder, it is the duty of an incumbent of a public office, at the expiration of his term, to surrender the office to his successor; and should he then desire to contest the eligibility, election, or qualification of the person so holding the certificate, he may do so by proceeding in the manner prescribed by law for determining contested claims to office: State v. Johnson, 30 Fla. 433 (11 So. 845). It would seem to follow that when the official term of an incumbent has expired, and his successor has been elected and qualified, his term is either suspended or terminated; and, while he may have a colorable title and private interest in the ensuing term in case the rights of his successor cannot vest, he cannot hold over under a claim of right until such right has been established in the manner prescribed by law.
2. The following provisions of the state constitution are deemed applicable in determining the eligibility of *560the plaintiff to hold the office of county superintendent of common schools: Article VI, section 6. “There shall be elected in each county, by the qualified electors thereof, at the time of holding general elections, a county clerk, treasurer, sheriff, coroner, and surveyor, who shall severally hold their offices for a term of two years.” Article VI, section 7. “Such other county, township, precinct, and city officers as may be necessary shall be elected or appointed in such manner as may be prescribed by law.” Article VI, section 8. “No person shall be elected or appointed to a county office who shall not be an elector of the county.” Article II, section 2. “In all elections not otherwise provided for by this constitution, every white male citizen of the United States, of the age of twenty-one years and upwards, who shall have resided in the state during the six months immediately preceding such election, and every white male of foreign birth, of the age of twenty-one years and upwards, who shall have resided in this state during the six months immediately preceding such election, and shall have declared his intention to become a citizen of the United States one year preceding such election, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote at all elections authorized by law.” It will be observed that article VI, section 6, in designating the officers to be elected in each county, does not enumerate that of county superintendent of common schools, but that office was created by an act of the territorial legislative assembly, (General Laws of Oregon, 1855, page 458,) and was in force at the time the constitution went into effect, and continued in force by virtue of its express provisions: Article XVIII, section 8. The terms “such other county officers as may be necessary,” as used in article VI, section 7, doubtless includes, among others, the county superintendent of common schools. *561The plaintiff’s demurrer to the defendant’s return to the alternative writ confesses that she is a woman, but since she was elected in pursuance of a statute which provides that “Women over the age of twenty-one years, who are citizens of the United States and of this state, shall be eligible to all educational offices within the state,” (Session Laws, 1893, page 62,) we cannot declare her ineligible without holding a statute unconstitutional, and therefore void, — a conclusion a court will rarely ever reach in a collateral proceeding.
3. That the title to an office cannot be tried in a mandamus proceeding is a rule of law so well settled that it needs no citation of authorities to support it. It is also well settled that in such proceeding against the incumbent of a public office to compel him to deliver the books and papers thereof to one who claims to have been elected as his successor, the certificate of election issued to the claimant, and proof of his qualification thereunder, constitute prima faeie evidence of title to the office, and a peremptory writ will be directed to compel the delivery of the insignia of the office, irrespective of the eligibility of the person to whom the certificate has been issued. In Crowell v. Lambert, 10 Minn. 369, Berry, J., in rendering the decision of the court in a mandamus proceeding, said: “On the whole it may be said that the question here is not who will be entitled to the office on an examination into the merits of the election, but who is now entitled to the possession of the books and papers appertaining to the office. The person holding the certificate is, under the circumstances of the case, prima faeie the officer, and, therefore, prima faeie entitled to the insignia and records of the office. In such cases the writ of mandamus is a peculiarly proper, adequate, and speedy remedy, and perhaps the only one by which to enforce the delivery of the books,” etc. So, too, in Atherton v. Sherwood, 15 Minn. 221, *562(2 Am. Rep. 116,) the court, in discussing the eligibility of one who held a certificate of election, and sought by mandamus to procure a delivery of the books belonging to an office, say: “It would seem, then, to be immaterial in this proceeding whether or not the relator was eligible, or was duly elected to the office, for to try either issue would be to try the title.” In Warner v. Myers, 4 Or. 72, it was held that the person holding the certificate of election was entitled to a peremptory writ of mandamus to compel the incumbent of the office to deliver the property appertaining thereto. In People v. Head, 25 Ill. 325, Caton, C. J., in speaking of the certificate of election which had been issued by a canvassing board, said: “The decision of the canvassers afforded prima faeie evidence that the relator was legally elected, and entitled him to the office till that canvass should be set aside by a proceeding to be instituted by the defeated candidate, in the courts of justice and in the forms of law.” To allow an incumbent to hold over and retain possession of an office after the close of his term, when a certificate of election has been issued to another, who has duly qualified, because perchance the incumbent may think his successor is ineligible, or has not been duly elected, would thwart the popular will as expressed by the majority at the election, and tend to make the incumbent the judge of his own rights as well as of the eligibility, election, and qualification of his successor: State v. Oates, 86 Wis. 634 (39 Am. St. Rep. 912, 57 N. W. 296). The electors having expressed their preference at the polls, it is better that the person chosen by their votes, having obtained the certificate of election and qualified, should be inducted into office, and the burden of proving the ineligibility and want of election or qualification cast on the prior incumbent, than that his successor should be deprived of his office until he could show himself eligible thereto. It is *563true that in State v. Aldermen of Pierce City, 3 S. W. 849, to which, our attention has been called, the court denied a peremptory writ of mandamus to compel the incumbent to deliver the books and papers of an office to one shown by the record to be ineligible; but, in view of the statute authorizing the plaintiff’s election, we decline to pass upon the plaintiff’s eligibility until the question is before us in a direct proceeding. Having received the certificate of her election in pursuance of a statute authorizing it, and having qualified, the plaintiff made a prima facie case, and showed a prima fade right to the possession of the books and papers, which she is entitled to use until the question of her right to do so can be tried in a proper proceeding. It follows that the judgment of the court below must be affirmed, and it is so ordered.
Affirmed.
AI-generated responses must be verified and are not legal advice.
