50 Miss. 429 | Miss. | 1874
Lead Opinion
delivered the following opinion:
There were several pleas, replications and demurrers by both parties, which were acted upon by the court.below. It is now sought to base error upon the action of that court in this regard, and it is urged that certain of the demurrers ought to have been extended to the information ; but the merits of this case are fully presented in the record; they could not be more clearly exhibited upon another or any number of trials; and no question of pleading or other technical point of any practical importance is conceived to be involved. On the contrary, the case is one, as is believed, calling for a decision on its merits.
The propriety of this course is confirmed, from the fact that estoppel in pais depends upon the evidence and not upon the pleadings. Herman on Est., 560; Bigelow do., 590, and cases cited in notes; Alexander v. Walter, 8 Gill., 240, the latter being an action of ejectment, in which it was held that matter of estoppel in pais was the subject of evidence and not of plea.
It is considered, therefore, that the second cause assigned for error only need be discussed, viz: that “the court erred in decid
In view of the unconstitutionality of the act of April 21st, 1873, and of the illegality of the election thereunder, the respondent is without right or defense, unless: 1st. He can invoke the doctrine of estoppel; or 2d. Unless there is a vacancy in the office in dispute, caused by the acts of the relator, whereby he has forfeited his title thereto.
If there is an estoppel it cannot be by judgment or record of adjudication, nor by matter of deed; but must be by matter in pais, of which estoppel hy conduct is the key (Bigelow on Est., 473). After a full discussion of the subject, this author says all of the following elements must be present in order to an estoppel by conduct:
1. There must have been a representation or a concealment of material facts.
2. The representation must have been made with hnowledge of the facts.
3. The party to whom it was made must have been ignorant of the truth of the matter.
4. It must have been made with the intention that the other party should act upon it.
5. The other party must have been induced to act upon it. Ib., 480.
And in this summary all the authorities concur.
In the case at bar, there has been no representation or concealment on the part of the relator; there has been no ignorance on the part of the respondent; nor, has the latter been induced to act, to take any step, or to change his position or conduct in any respect whatever, in consequence of anything said or done, or withheld by the relator. On the contrary, both these parties were deluded or impelled by the act of the legislature ordering an election. The record discloses an active public sentiment in favor of a pledge on the part of the several candidates for the office of
And the doctrine is also briefly and accurately stated in Taylor v. Zepp, 14 Mo., 482. To establish estoppel in pais, the court say there must be: 1. An admission inconsistent with the evidence offered to be given, or the claim offered to be set up. 2. Action by the other party upon such admission. 3. Injury to him by allowing the claim to be disproved.
For the purpose of testing the case before this court, the respondent’s statement of it may be accepted as embracing the case presented for adjudication. According to his own testimony in the cause, there was no admission, statement or act by the relator which was intended to or which did in fact influence his conduct. They were not dealing together, but were acting independently, if we accept the case made by the latter. Hence, there was no fraud, at least, on the part of the relator towards the respondent, for the latter was not governed in his line of conduct or influenced by any act of the former. On the contrary, taking the whole record together, it is palpable that the relator, rather than .the respondent, was led into a line of conduct prejudicial to his interests by the act of the legislature and by the manipulations of active partizans. Within all the authorities — Bigelow on Est., ch. 19 ; Herman’s L. of Est., sec. 442; ib., ch. 12, and cases cited by these authors; also, cases cited in Phillips v. Cooper, MSS. opin
It has been urged that it is ungracious in the relator to seek to evade the pledge. With reference to this fact, it has been observed that, in limiting the number of candidates to be voted for at the regular election, it had served its purpose. It may be further remarked that, if the case made by the respondent be alone accepted, the attempt to interpose the pledge to defeat the relator comes with an ill grace from the former, whose conduct, he testifies, was wholly independent of the course of the relator. But it is on the ground of public policy that the acts of the relator, set forth in the record, shall not be allowed to change the tenure of an important public office, and not upon any ground between the parties. Holman v. Johnson, Cowper, 343.
There is another view of this pledge quite as conclusive against the theory of the respondent, as the suggestions already made, viz : that it. is contract or promise of future action, and not a “representation,” such as enters into or constitutes an element in the law of estoppel. ' At most, it is but the expression of a present intention, which the party is at liberty to change. If an action on this agreement were instituted by Hudson for the recovery of damages for nonperformance, the obstacles and result may be anticipated without suggestion. Bigelow on Est., 481; Langdon v. Doud, 10 Allen, 433; Howard v. Hudson, 2 El. & B., 1; Audenried v. Bitteby, 5 Allen, 382; Plumer v. Lord, 9 ib., 455; Jorden v. Money, 5 H. L. Cas., 185; White v. Walker, 31 Ill., 422; Harris v. Brooks, 21 Pick., 195.
Reference is made to Colton v. Beardsley, as stated in Bigelow on Estoppel. As therein presented, p. 522, that case is almost conclusive of the theory of respondent, but its examination in the reports, 38 N. Y., 29, shows it to possess no feature like the case at bar. The action was trover against school trustees for the taking and conversion of certain property. The plaintiff, to prove
The other concurring judge merely says : “It is unnecessary to inquire whether his acts do not amount to an estoppel, to his alleging that his office was not then vacant; although my impression is that it should have that effect.”
That was an election under a valid and subsisting statute, which declares a vacancy upon a refusal to serve, in which case the remaining trustees can convene the inhabitants, who, when assembled, are empowered to fill vacancies. In that case, the person first elected, after wholly neglecting to accept the office or to discharge its duties, attended the meeting, when his place was filled? as in case of vacancy, he, remaining silent, and without objection, saw his successor qualify and enter upon the duties of the office, which were performed by the latter for several months, and until the plaintiff’s property was seized and sold for taxes, before any question was raised as to the legality of the second election. Col-ton then sought to contest the right to the office in the action which he instituted for the cause already stated. This was held by the concurring judges an attempt to attack title to an office in a collateral proceeding, which they also agreed could not be done. Upon this point the same dissenting judge was of the opinion that title to the office was directly in issue, and to justify, the defendants
It may be repeated that there was no evidence offered to show that Colton ever accepted or served; there was evidence of his refusal to serve within the statute creating a vacancy; no proof was offered to show that Beardsley was not elected to an actual vacancy ; there was only proof of Colton’s election nearly three years prior to the election of Beardsley to his place, as in case of vacancy, and his residence in the district; there was an election to fill his place as in case of vacancy by his refusal to serve; he was present at the meeting, unobjecting; permitted his successor to qualify and assume the office; and only objected several months thereafter, when his property was seized and sold by the school •district tax-collector, under warrants signed by the several trustees, including the trustee chosen as his successor. The circuit court ¡ruled that, prima facie, there was no vacancy, and that the trustees must show they were such de jure.
The appellate court held that, prima facie, there was a vacancy, and that, prima facie, also, Beardsley was trustee, and further, that' •official character may be established, prima facie, by oath and reputation, upon which grounds, the judgment of the circuit court was reversed.
Two points of concurrence in that case may be added by way of further showing its clear contrast with the case at bar. X. It was held that, under the statutes of New York, regulating affairs of school districts, the trustees and the inhabitants, when convened in school district meeting, were invested with power, in their judgment and discretion, to determine whether there was a vacancy, as in that case, and, that said determination was final until reversed or set aside by a direct proceeding for that purpose. 2. That a refusal to serve, whereby, under their statute, a vacancy was created, was clearly shown; that the inhabitants of the district so understood and acted upon it, and that the plaintiff’s presence at the filling of the vacancy, and subsequent conduct, approved their understanding and ratified- their acts.
Another case cited by counsel (Begina v. Green) ought, perhaps, to be briefly noticed. Search has been made in the report, but it can be found only as given in Bigelow, 565, and Herman, 535. That was a motion for a quo warranto against the defendant for exercising the office of councillor when disqualified by the statute. His election was under a valid and subsisting law. The relator was well acquainted with the intention of the defendant to become a candidate; he was present when the defendant was elected and acquiesced in his election; the election was declared and published; no notice of the disqualification was given at the time of the election or publication ; in fact, the relator was chairman of the meeting at which the defendant was appointed to office, and administered to him the oath of office or declaration required by law. The court very properly held, as far as can be judged from the statement of the case by Mr. Bigelow, that the relator could not be heard to question the right of the defendant. The court make the significant suggestion of a distinction between a judicial and a ministerial act in the induction of another into office. The relator, in administering the declaration to the defendant, by which the latter was inducted into office, acted judicially, whereas, if he had acted ministerially, the court say, the case would have been otherwise decided.
Mr. Herman, in his work on the law of estoppel, gives three or four lines to the foregoing case only. According to this author, the defendant was “ induced ” to take the office and was inducted into it by the relator, who, in so doing, acted in his official and judicial character. As referred to by these text writers, therefore, the case is not analagous to the one under consideration.
Another branch of the case before this court will now be discussed.
And, in this connection, it is insisted, that the’pledge and the surrender were equivalent to a resignation, or an abandonment of the office. It is apparent, from the authorities, that, had the board of supervisors of Winston county found, in fact, a vacancy upon a hearing, after notice to the relator; had the board, thereupon, ordered an election to fill the vacancy ; if such election had been held; had the person, thus elected, qualified and assumed the duties of the office, Turnipseed permitting all this to be done without objection or the interposition of any claim ; and, were this contest between him and the person thus holding the office, quite another and different case would have been presented for adjudication. Such a case would have borne a very strong similarity to that of Colton v. Beardsly, otherwise, wholly unlike the one one at bar.
As to the pledge signed by the several candidates, it must be held to have very little if any weight in the disposition of the case. It was but the machinery of a political party to bring about, in its own way, the nomination of a candidate for support at the regular election. To this extent, it may, perhaps, be unobjectionable ; but beyond this primary purpose, it ought not to have recognition. Its introduction to control the right to an elective office is a use for which it was never designed. At least, beyond this, it ought not to have legal countenance. As a means of effecting the tenure of public offices, it must be regarded as impolitic. If an office may be transferred from one to another in the mode attempted, no elucidation is necessary to expose the evils which might flow from repeated changes, which the sanction of the claim of the respondent, to the extent required, would render possible. Butts v. Wood, 37 N. Y., 317; Gray v. Hook, 4 ib., 449; 3 Kent’s Com., § 588, top p., 11th ed, part 6, sec. LII, "Of Offices,” et seq.
The provisions of the code, bearing on these questions, are these:
“ § 292. If any state or county officer, shall be found, by inquest, to be an idiot, lunatic, or unsoud in mind, during the the period for which he is elected, or shall, during that time, be found guilty of felony, or any infamous crime, corruption, or peculation in office, or gambling with money which may have come into his hands by virtue of his office, or shall be removed from office by sentence of any court of competent jurisdiction, the office held by such person shall be thereby vacated, and the vacancy shall be supplied as by law directed.”
“ § 398. If any state, district, or county officer, shall remove out of the state, district, or county, for which he was elected, during the term of his office, such office shall thereby become vacant, and the vacancy shall be supplied as by law directed.” * * If the code declares a vacancy in office for any other cause, the section has been overlooked.
§ 1363, gives to the board of supervisors power, and it is made their duty to “order elections to fill vacancies that may occur in any of the offices of their respective counties.”
In Johnston v. Wilson, 2 N. H., 202, a vacancy was held to be created by neglect to take the oath of office, and an absolute refusal to perform its duties, except upon terms indicated by the officer and not acceded to by the proper authorities. The court, however, say: “It must be obvious, also, that when once accepted, no vacancy can be said to exist in the office, till the term of service expire, or till the death, removal or resignation of the person appointed.” And the terms resignation and nonacceptance are employed as synonymous, the court saying: “ The term used to express a vacancy was immaterial.”
To the first question the court reply: “ Such refusal is, at most, the omission by such officer of a prescribed duty. The statute does not, in terms, visit any such consequence as that contended for, upon the act complained of. To give it that effect by construction, would be to adopt a principle which, in practice, would render it necessary to fill most offices many times over, before the legal time appointed for a new election by the people."
With reference to the second question, it is said: The selectmen doubtless, to some extent, had a discretion in the matter; for instance, in selecting a suitable person to fill any vacancy which might occur. But we think a vacancy must-have occurred, in order to give them any jurisdiction of the matter. This vacancy must have occurred in one of the modes pointed out in the statute ; ? from nonacceptance, death, removal, insanity, or other disability.’ Now it cannot be contended that the present case comes under any of the the terms used, unless it be the last, and it would seem to require argument to show that the omission complained of in this case, constitutes no disibility to perform the functions of the office, in any such sense as that term is used in the statute. ‘ Other disability,’ must import such like disability as had been before enumerated ; that is, such as wholly vacated the office and left it the same as if there had been no appointment. In the present case no such vacancy had occurred, and by consequence, the selectmen had no power to make an appointment and their proceedings are irregular and void.”
The rule stated in The People v. Carrique, 2 Hill, 97, quoting Angel & Ames on Corp. is, that a resignation by implication may take place by being appointed to-and accepting a new office in
It was declared in Cornwell v. Allen, 21 Ind., 522, that a temporary disability to discharge the duties of the office, might not of itself, create a vacancy, but that a disability designed to continue for the whole term of office, must vacate the office. In that case, the party enlisted in the army of the IJ. S. for 3 years, or during the late war. Held, a vacancy was created, because the person by his enlistment, entered into an engagement to leave the county and state for three years, covering the full term of office.
The case of Kiel v. Baird, 47 Mo., 303, was this: K. was elected treasurer of the county of Cooper in 1868, for the term of two years; he duly qualified and assumed the duties of the office;thereafter an information was filed in the county court of that county, in which petition it was averred that K. had been unable to attend to the duties of his office for a period of fifty days; on which information the county court proceeded ex parte to inquire into the case, and as a result of such examination declared the office vacant; whereupon the court appointed B. to the office. The court say: “ Where is tbe legal warrant for these proceedings? We are referred to the statute, which provides as follows t ‘ In case of vacancy in the office of treasurer by death, resignation, removal or otherwise, it shall be duty of the county court of the proper county to fill such vacancy by appointment.’ This statute authorizes the county court to fill an existing vacancy, but confers upon the court no power to create the vacancy it is to supply. The statute cited confers no jurisdiction upon the county court to act in the premises until a vacancy actually exists. The-pleadings show that there was no vacancy in the office at the-time the court assumed to act. The complaint of the county attorney is, that the relator occupied the office, but neglected its duties. That is the substance of his averments.”
While the constitution of Mississippi contemplates vacancies in-office from various causes, it has been seen that the Code has
Did a vacancy “ occur ” in the office in controversy by the acts of the relator ? Manifestly, the board of supervisors, as a matter of law, cannot, by adjudication, create a vacancy, though as a question of fact, that body may inquire whether one exists or not. In this case it is a question of law upon the facts, to be determined by a competent tribunal. Although he delivered the office to the respondent, the relator did not remove from the county, nor did he otherwise render himself disabled or disqualified permanently, to discharge the duties of the office. As in the eases cited, there is a clear and just distinction between a penalty for the neglect of official duty, and a penalty involving the vacation of an office. Spafford v. Hood, 6 Cow., 478. To hold that the relator has vacated the office involved, would be contrary to a correct public policy, and to punish him for possessing a law abiding disposition, as indicated first, in yielding to the decree of the legislature, then in signing the pledge, and finally in a voluntary surrender, which was at the end of his term, according to the statute that for the time being commanded his obedience.
The true rule in a case like the one before the court would seem to be, that in order to create a vacancy, the party must permanently disable himself from performing the duties of the office, either by himself or deputy, or he must, by acts and declarations, manifest a clear intention to willfully abandon the office and its duties — an intention not shown by the record.
Holding the order of the board of supervisors declaring a vacancy in the office in dispute, standing alone unacted upon, to be nugatory, this case is narrowed down to the single question, whether the delivery to the respondent was a resignation by im
Judgment of the circuit court reversed and judgment final here.
Dissenting Opinion
delivered the following dissenting opinion:
Not being able to concur with the majority of the court, I present very briefly, as required by law, the reasons therefor. This is purely a controversy between the parties, to the property in the office, and as incident thereto, its emoluments. The proceeding instituted by Turnipseed had for its objeet the recovery of
The question is, whether Turnipseed can recover the office, and not whether Hudson is de jure invested with it. It may be true (as is conceded on all hands), that Hudson has no better right than a de facto incumbent, having entered under claim and color of right; and it may be also true that the relator is not as against him, entitled to the office.
The view that I take of the case is, that Turnipseed abandoned the office and gave way to its occupancy by Hudson, who came in not as a usurper, but under color of right. No set form of resignation is necessary. If Turnipseed voluntarily retired from-the office, and Hudson was admitted to it under the forms of lawr though not rightfully inducted, then Hudson is strictly de facta clerk, and can only be ousted by the judgment of the court at the suit of the state.
It is a well established fact, that from and after the first of January, 1874, Turnipseed altogether ceased to discharge the functions and duties of the office; that all the books, papers, records, the seal and other insignia of office, were laid down by him and formally taken up and used by Hudson.
Looking to the circumstances under which Turnipseed divested himself of the office, and Hudson entered upon’it, and it is plain to my mind that the respective acts of the parties meant a vacation of the office on the one side, and its acceptance and occupancy on the other.
These are the prominent facts. It was doubtful whether a legal election for the particular office could be held in November, 1873. Both parties desired to become candidates for the office,, and agreed with each other to submit their respective claims to the nomination to a primary meeting, whichever received the nomination the other to give him his support and vote. Hudson got the
Hudson, upon his retirement, entered, under color of right, his certificate of election, his bond approved and oath of office. •There is not an element of usurpation, but a fulfillment of every requisite laid down in the books to constitute him a de facto clerk.
Turnipseed agreed with Hudsob that if the latter should receive the nomination, and be chosen at the November election, in which he would assist with his vote, then he, Turnipseed, would retire, and let Hudson take the office. Such an agreement, in a suit for its enforcement, or for its breach, would have amounted to nothing ; nor would Hudson’s election have conferred a right, if Turnipseed had not in fact actually vacated the office, and Hudson had not become invested with it, under color of right as before stated.
The legal effect of the acts of Turnipseed was a voluntary abandonment or resignation. Before it actually occurred, he came under an agreement, to do so contingently. The contingency happened — and thereupon, in the most open and notorious manner, he retired. He contributed to place Hudson in office. He delivered to him the property and seal. The board of supervisors approved his bond, and swore him in. The state has ac
This is not the case of a casual or temporary refusal to perform the duties of an office, but rather of a deliberate and public abandonment of it — which, in law, is a resignation. If Turnipseed has ceased to be the clerk, he has no right to contest the claims of the defendant, Hudson. In support of these views, I refer to Alexander v. Walter, 8 Gill, 253; Regina v. Green, cited in Bigelow on Estoppel, 565; Colton v. Beardsley, 38 Barb., 41, 51; Church v. City of Milwaukee, 31 Wis., 518, 519.
The authorities show, that the doctrines of estoppel, in proper circumstances, apply to the claimant of an office. Does not the principle and the reason of it, Speaking through the facts of this case, preclude the relator from asserting a right to the office? A party is sometimes, not permitted to deny that which he has solemnly and deliberately adopted and received as true. Herman on Estoppel, § 9, p. 11.
It has been well said by Mr. Bigelow on Estoppel, 481: “ At the present day, estoppel is never employed to exclude the truth ; its whole effect is to preclude parties and those in privity with them from unsettling a matter which they "have in solemn form admitted or adopted.”
The circumstances of this case meet the several requisites of an estoppel in pais, defined by Mr. Bigelow, p. 600 :
First. Turnipseed, by his agreement with Hudson, his participation in the election and voting for him, his withdrawal from the office, so that Hudson might qualify and take possession, has done acts which influenced Hudson, and utterly inconsistent with the claim he now sets up.
Third. Hudson will be injured, by allowing Turnipseed to deny all these acts and admissions, and assert his claim to the office.