Hawke v. Wentworth

ROUSE, J. (after stating the facts).—1. The first question presented for our consideration is the action of the district court in proceeding to the trial of the case on the answer or cross-bill of defendant, after plaintiff had dismissed his complaint. This suit was based upon the provisions of title 62 of the Revised Statutes, a statute giving a specific right to try the title to an office. The matter in controversy was “the title to the office of clerk of the board of supervisors.” At the time of filing the complaint, plaintiff was not in possession of the office. He sued to gain possession. He forced defendant into court on that issue. Defendant met the issue by claiming he was in possession by right, and that after being brought into court plaintiff had wrongfully re-entered and ousted him. The title to the office was the matter in dispute at the date the complaint was filed, and remained the matter in dispute at the date of the trial. Rev. Stats., title 62. The court did not err in refusing to dismiss the action on plaintiff’s motion, and in proceeding with the trial to judgment on defendant’s answer or cross-complaint. The cross-complaint contained facts constituting a cause of action against plaintiff for usurping the office of clerk of the board of supervisors, and could be properly treated by the court as an action on behalf of defendant against plaintiff for said office, and a trial thereon against plaintiff was proper; particularly inasmuch as it was averred therein that plaintiff, after instituting the suit to try the title thereto by leave of the court, had taken the matter in hand, and by his own illegal acts had taken possession of the office before the right thereto could be heard and determined on his complaint by the court. [324] 2. The hoard of supervisors on January 3, 1893, consisted of Scott White, W. K. Perkins, and James P. McAllister, all elected by the people, the first-at che general election in 1890, and the other two at the general ejection in 1892. On the said 3d of January, 1893, plaintiff was duly elected clerk of the board of supervisors. The clerk of the board of supervisors is elected by the board of supervisors. Rev. Stats., par. 390. The office of clerk of the board of supervisors is held at the will of the board. They can remove one and appoint one at pleasure. Id., par. 3049. Plaintiff, therefore, could only hold his office during the pleasure of the board of supervisors. 3. White and Perkins, as members of the board of supervisors, on January 9, 1893, declared a vacancy existed in the board of supervisors; that McAllister was not a member thereof; and they proceeded to elect E. A. Nichols to fill said vacancy. In other words, they d .dared that McAllister was not a supervisor, and filled the supposed vacancy by electing Nichols. White and Perkins potressed no authority to pass on the question of McAllister’s title to or qualification for the office. Those questions can only be determined by the district court in proceedings instituted therein for that purpose. Rev. Stats., tit. 62. The acts of White and Perkins in the attempted removal of McAllister, and the election of Nichols, were void, and McAllister did not thereby lose the office of supervisor, and Nichols did not become a member of the board of supervisors. It follows from the above statement that Perkins and Nichols did not confer any right on Prank Hare in their proceedings in electing him to the office of supervisor to fill the vacancy caused by White’s resignation. Perkins and McAllister, after Whiten resignation, were the only members of the hoard of supervise rs. , The vacancy caused by White’s resignation could only be filled by an election by the remaining supervisors and the probate judge. Rev. Stats., par. 388. No such election was held to fill the vacancy until July 5, 1893. At that time McAll inter and the probate judge, after having served notice on Perkins to attend for that purpose, elected James Reilly supervisor. Reilly qualified according to law, and then the hoard consisted of Perkins, McAllister, and Reilly. The board of supervisors, as thus composed, on July 7th, elected ant! appointed defendant clerk of the board of supervisors. This board had the power to [325] remove plaintiff, and to appoint defendant. Id., pars. 390, 3049. Defendant was the duly elected and appointed clerk of the hoard of supervisors from the seventh day of July, 1893, and as such entitled to the office, books, papers, and records of said office. It is not necessary that we should determine the effect of the acts of Perkins, Nichols, and Hare from the date of White’s resignation. Those acts, aside from the title of defendant to the office of clerk of the hoard of supervisors, are not now in question, and may never come up for consideration. During that period McAllister was pressing his claim to the office of supervisor in the courts, and had been successful. He had applied for and secured a writ of mandamus to compel this plaintiff and associates to recognize him. The issue presented by him had terminated in his favor, hut the remedy was withheld on the application for an appeal granted on plaintiff’s application. Defendant, likewise, when entitled to the office of clerk of the hoard of supervisors, and the hooks, papers, and records thereof, resorted to the courts for relief. After the relief was granted, and he was placed in possession of the defendant’s office, etc., plaintiff by force, and without any legal or authorized power, took possession of the defendant’s office, books, papers, and records, and, when defeated; resorted to an appeal, pending which he remained in office to the end of defendant’s term of office. Under the circumstances, we feel that it is proper that we should suggest that the judiciary, having jurisdiction of the matters, should have used the authority vested in it to prevent the continuance of the acts and conduct mentioned, to the end that the fair reputation of the people of a good county for law and order would not have been tarnished, and the credit of the county would not have been impaired, by the effect of the issuance of demands against the county by two separate hoards of supervisors. We are satisfied that the parties whose acts are declared to he illegal were not actuated by any impure motives, other than a selfish personal and individual pride in each to not he outdone by an opponent. Bethune, J., and Hawkins, J., concur. Baker, C. J., took no part in this ease.