Territory ex rel. Eisenmann v. Shearer

| Supreme Court Of The Territory Of Dakota | Oct 15, 1880

Kidder, J.

The relator applied to the judge of the Second Judicial District at Yankton in said district upon affidavits, for an alternative writ of mandamus commanding the defendant to immediately take to and deliver to the relator all the papers and property pertaining to the defendant’s office. The alternative writ was granted by the judge returnable before him at Chambers, at Yankton, that being outside of said subdivision.

The defendant appeared on the return day and demurred to the said writ because the court or jiidge had no jurisdiction to issue the writ and make it returnable at Yankton outside of said subdivision ; because the writ did not state facts sufficient to constitute a cause of action, in this, because it does not recite in terms that the relator has no plain, speedy and adequate remedy at law; and because the act of February 22, 1879, did not consolidate Armstrong with Hutchinson county, and did not abolish defendant’s office of register of deeds and ex-officio county clerk of the former county.

The appellant further insists that the court had no authority to try the issue of law raised by the demurrer, at Yankton in vacation, and render judgment on the overruling of the demurrer; and that there was error in this, because the judgment or order was signed, “By the Court, Peter C. Shannon, Judge.”

The appellant also insists that an action in the nature of quo warranto is the proper remedy, and not mandamus.

The alternative writ showed that the relator on February 22nd, 1879, and prior thereto, was the duly authorized register of deeds and ex-officio county clerk of Hutchinson county. That prior and up to that time the appellant had been register of deeds and ex-officio county clerk of Armstrong county. That by said act (aide chapter 12, laws of 1879, page 20) approved on that day, the defendant’s said office was abolished, and Armstrong county was consolidated with and made a part of Hutchinson county; and that it was expressly enjoined as a duty of the appellant by section 4 of said act, to “immediately take to and deliver to the relator all the papers and property pertaining to the appellant’s office..” . That compliance with the Statute had been demanded and refused. That the relator had commenced an action against the appellant in the nature of quo warranto and a judgment had been rendered against him. That demand was again made but the appellant still refused to deliver the same, whereupon these proceedings were commenced.

After the overruling of the appellant’s demurrer, and he having elected to stand on the same, judgment was entered directing a peremptory writ to issue, which writ was immediately signed and issued by the judge at Yankton and attested by the clerk of the court of said subdivision, under the seal of the court, at Olivet. The peremptory writ was duly served on the appellant and on the return day he perfected this appeal.

The Jirsf question presented for our determination is: 1. Had the judge, at Chambers, any jurisdiction or authority to issue or direct the issue of the alternative writ of mandamus returnable before him within his district but outside of the subdivision in which the proceedings are entitled ? 2. Could such judge proceed to trial and judgment and issue the peremptory writ outside of the subdivision?

This authority is expressly given to the judge by section 712 of the Code of Civil Procedure, which provides that writs of mandamus may be “issued by a judge of the District Court, in vacation, and when issued by a judge of the District Court may be made returnable and a hearing thereon be had in vacation.” That it was competent for the Legislature to confer such authority on the judge we have no doubt. Statutes conferring the same authority upon judges are found in many of the States and their constitutionality, except in the case of Brown v. Atkin, 1 Utah 277" court="Utah" date_filed="1875-06-15" href="https://app.midpage.ai/document/brown-v-atkin-6567712?utm_source=webapp" opinion_id="6567712">1 Utah 277, has never been questioned, but the court held in that case that it was competent for the Legislature to confer this authority upon a judge in vacation. The same jurisdiction is recognized, under a Statute similar to ours, by the Supreme Court of California in the case of Lacro v. Casamenava, 30 Cal., 560" court="Cal." date_filed="1866-10-15" href="https://app.midpage.ai/document/larco-v-casaneuava-5436117?utm_source=webapp" opinion_id="5436117">30 Cal., 560.

This authority being conferred upon the judge at Chambers, it is well settled that he can hold his Chambers at any place in his district. He is not obliged to go to the county or subdivision where the action or proceeding is pending before he can act as judge therein. It would be absurd to hold that the judge is obliged to go to the county where an action is pending before it is competent for him to sign an order directing his clerk to enter a judgment by default under our Statute. And it would be equally absurd, and under a mandamus a slow instead of a speedy remedy, if the judge, who has authority to issue the writ, could not make'it returnable before him anywhere in his district.

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 was 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 writ himself, it was 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.

The appellant also submits that there is error in the proceedings because the court had no jurisdiction to require him to answer the alternative writ, or to try and determine the issues of law raised by the demurrer, outside of the subdivision. This position is untenable under our Statute. For the purpose of hearing and determining special proceedings of a civil nature, the District Courts are always open. (Section 31, Code of Civil Procedure.) The appellant insists that no matter how distant such court is from his residence, or from the place where he is actually engaged in holding terms of court elsewhere in his district, the Judge must actually be in the county, or subdivision, before such court could be open. If such position is correct then these courts are not always open for the purpose of hearing special proceedings, but are only open when the Judge happens to go into such county, or subdivision, and not open at such times elsewhere in the district. This construction contended for would be a contradiction of the plain terms of the Statute, and intention of the Legislature. It is true that section 237 provides: “ That issués of law must be tried at a regular or special term of the District Court.” But this section is intended to apply generally to civil actions, and the fact that the Legislature has inserted the special provision of section 31, supra, shows that it intended .to make an exception in regard to special proceedings of a civil nature. We are, therefore, of the opinion that the District Courts have jurisdiction to try and determine special proceedings, including mandamus, outside of the county or subdivision, in which such proceeding is pending. The court has authority conferred upon it by section 700 of said Code to order issues of fact to be tried by a jury in a mandamus proceeding, and designate any county in his district where the same may be tried. It would be unreasonable then to hold that the proceedings, after verdict, would have to be suspended until some subsequent term of the court in which the proceeding was originally pending. It is clear that the proceedings, after such verdict, could be proceeded with in vacation, and the Judge would not be compelled to go back to the original county, in person, or wait until the next term of the court in that county.

The next objection presented by the appellant is, that the alternative writ does not state facts sufficient to constitute a cause of action, because the Act of February 22d, 1879, supra, did not consolidate Armstrong with Hutchinson county, and did not abolish his said office.

The plain reading of the Act admits of no other construction than that the consolidation was made, and that the appellant’s office was thereby abolished. The operation of the Act as to these two counties was not left to a vote of the people. The second section of the Act consolidates the two counties in express terms. The third section provides as to who shall hold the offices in the enlarged county of Hutchinson, and the relator by virtue of his office, has the additional territory of what was formerly Armstrong county, embraced in his jurisdiction. The fourth section suspends and extinguishes all corporate business of Armstrong county, and enjoins expressly all officers of Armstrong county, (including the appellant,) except justices of the peace and constables, to “immediately take to and deliver to the like officers of Hutchinson county” all “papers and property pertaining to their offices respectively, which are-required to be delivered to their successors in office by section fourteen of chapter five of the Political Code,” and that immediately their offices should cease and determine.

With the fourth section of the Act, all legislation and reference, to said counties of Armstrong and Hutchinson, ceases. With said section the consolidation is complete and nothing more is left to be done as to them. And the further legislation in said Act is wholly and in terms concerning other counties, and entirely independent of Armstrong and Hutchinson.

The 5th, 6th and 7th sections of the Act make somewhat similar provisions in reference to consolidating -ITanson and Davison counties, and then section 17, without referring in any manner to Armstrong or Hutchinson counties, provides “that the proposition contained in the preceding sections of this Act to consolidate the counties of Hanson and Davison shall be submitted to the voters in each of said counties separately, at a special election hereby authorized to be held in each of said counties on the second Tuesday of September, 1879,” and the manner of the ballots at such election is in the same section expressly provided for. No provision is made in this section for elections in any other counties.

Then follows section 18, under which the appellant bases his excuse for continuing to exercise his office, and not delivering the books, papers, etc., to the relator.

Section 18 provides that, “ If a majority of the votes cast at such election in each of any two of the said counties which, in this Act, is proposed to be consolidated, shall be in favor of consolidation, then as to those counties, this Act shall be in force and take effect on the first of October, 1879; and if a majority of the votes cast at such election, in either of said counties, shall be against consolidation, then, as to these counties, this Act shall have no effect.”

When the Legislature used the words, “ such election,” in section 18, they unmistakably referred to the election provided for in the preceding section, to-wit: the election for Hanson and Davison counties.

This is the only election provided for in the whole Act, and the time for taking effect of the Act as to “ those ” counties, exactly corresponds with the time for holding the election provided for in section 17. No provision is made for an election in Armstrong and Hutchinson counties. And the limitation, as to the time of the taking effect of the Act, as to them, cannot be tortured out of section 18 by any reasonable construction. If it is said that an election could be had at the general election for Armstrong and Hutchinson counties, such a proposition would be absurd, because the law goes into effect October 1st, before a general election occurs.

The bungling words used in section 18, cannot, without absurdity, be made to apply to Armstrong and Hutchinson counties. But if there could be any doubt about the meaning of section 18, it is completely removed by sections 19 and 20.

When section 19 speaks of “ the counties named in the preceding sections,” it certainly refers to the only counties named in those two sections, to-wit: Hanson and Davison. And section 20 provides that if Hanson and Davison decide to consolidate, the offices shall become vacant, and successors are elected at the next general election, which would be the November election after October 1st, mentioned in section 17.

Sections 17, 18 and 19 provide for the time and manner of the elections in Davison and Hanson counties — the time when the Act shall take effect depending upon the result of “ such election and provide for the indebtedness of the “ said counties,” if the counties “named” in the sections 17 and 18 decide to consolidate; and further provide for the expiration of the terms of office in “ Planson and Davison ” counties, and filling of the vacancies at the general election.

R cannot be supposed that the Legislature, after so carefully and expressly providing for Hanson and Davison counties in such important matters, would intend to include Armstrong and Hutchinson, without doing so in express language. Beside, section 4 expressly negatives any such limitations on the taking effect of the Act on Armstrong and Hutchinson counties, when it provides “ that immediately their offices shall cease, and the terms thereof end.” Immediately, certainly referred to the time of the approval of the Act and not the following October.

For the foregoing reasons it follows that the Judge below committed no error in holding that the county of Armstrong was consolidated with Hutchinson county, and that the appellant’s office was abolished on the 22d day of February, 1879.

The appellant also claims that the affidavits upon which the application for the alternative writ is founded should state in terms, “ that the relator has no remedy at law.” This allegation is not indispensible either in the affidavits or in the alternative writ. (People ex rel Fuller v. Hilliard, et al, 29 Ills., 413.) From an inspection of the record, and from the nature of this case, it is apparent that the relator, Eisenmann, had no plain, speedy and adequate remedy at law. When this is apparent to the Court on the face of the papers, such an allegation would be a mere conclusion of law. The relator in this case had demanded of the appellant to deliver the papers and property, although such demand was not necessary, and he refused to comply with the demand. The relator then brought an action in the nature of a quo warranto against the appellant and obtained a judgment against him. Still he refused to deliver the books and papers. The relator again demanded the same, and he still refused, in disregard of the judgment of the court, and contrary to the duty especially enjoined upon him by Statute, as a duty resulting from his .office. From this state of facts it is clear that the relator “ had not a plain, speedy and adequate remedy in the ordinary course of law.”

There is no force in the position taken by the counsel of the appellant, that the proper remedy in this case is an action in the nature of quo warranto. The record discloses that that remedy had been exhausted by the relator, and no appeal had been taken from the judgment.

We can come to no other conclusion then, than that these proceedings were rightly brought, and that mandamus is the proper remedy.

Section 695 of the Code of Civil Procedure provides, that the writ of mandamus may be issued by the Supreme and District Courts to any inferior tribunal or person to compel the performance of an act which the law especially enjoins as a duty resulting from an office. And section 712, before quoted, gives the same power to the Judge of the District Court.

It was the duty of the appellant, immediately on the passage of said Act, to have taken to and delivered to the relator all the books and papers pertaining to his office, without demand. He was in the same position by the terms of said Act, except that he was not entitled to a demand, as he would have been if his term of office had expired. And the provisions of section 14 of chapter 5 of the Political Code are expressly referred to in said Act.

It is now too well settled to remain in doubt that mandamus is the proper remedy to compel the transfer or delivery of the books, seals, papers and property pertaining to a public office, to the person properly entitled thereto. These are some of the numerous authorities in point. (Parish v. Stearns, 21 Pick., 151; People v. Kilduff, 15 Ills., 492; People v. Head, 25 id., 325; Crowell v. Lambert, 10 Minn., 369" court="Minn." date_filed="1865-01-15" href="https://app.midpage.ai/document/crowell-v-lambert-7962166?utm_source=webapp" opinion_id="7962166">10 Minn., 369; Atherton v. Sherwood, 15 id., 221; Warner v. Myers, 4 Oregon, 72;) and others too numerous to cite.

Finding no error in the record, the judgment and proceedings below are

Affirmed.

SHANNON, C. J., and Moody, J., concurring. Barnes, J., did not sit in the case.