State ex rel. Woodford v. North

Phelps, J. This is an information in the nature of a quo warranto, charging , the defendants with usurping the-office of school district committee within a certain area described in the information. The school district described in the information and of the school committee of which the relator is a member, embraces what was formerly two school districts of the town of Avon, known as the second and fifth districts, and by certain proceedings authorized by statute those two districts were consolidated into one now called the second district. The inhabitants off the old second district were dissatisfied with the proceeding and adopted certain measures which they claim to have been authorized by a special act of of the General Assembly for the dissolution of the consolidation, and the reestablishment of the old districts. The legal validity of these proceedings is denied by the relator, who claims that the only legal district within the territory is the consolidated or new second district. The inhabitants of the old second district, claiming to have again become a legally existing district, held their annual meeting as such, in October last, and elected the defendants a committee of the district, and they are now claiming to be, and are acting as, a committee of the old second district, and do not claim to he a committee of the consolidated or new second district. In this state of things the information is filed, charging the — 86 — defendants with usurping and exercising the office of “ school district committee within the area of the aforesaid school district,” that is, within the area of the new second district. The demurrer of the State to the pleas of the defendants opens the whole record to review, and any error in the information is as fatal to the case of the relator, as an error in the. plea to that of the defendants. And the defendants claim that a fatal defect exists in the information in its failure to charge, either in terms or effect, that the defendants have usurped the office of committee of the new second district. It is very clear that the information should in terms, or by fair intendment, have described the office usurped as that of committee of a particular district, and not that of district committee generally, apd 'it is only as the office pertains to a particular district that it can have any existence in contemplation of law; and it is equally clear that the office must have been described in terms or by fair legal intendment as that of committee of the district described in the information as the second district. It is only of that district that the relator was a legal committee, and of course only in a usurpation of that office that he could have an interest. Besides this, if the information had changed a usurpation of the office of committee of the old second district several difficulties would have followed. The office which the defendants would then be charged with usurping would not be a legally existing office unless the district was a legally existing district, and the very point in controversy between the parties was whether it was so, the relator claiming it was not. If it was not, there could of course be no such office recognized by the law as that of committee of that district, and it is well settled that an information in the nature of a quo warranto will not lie to try the right to an office that is not a legally authorized public office. There is a single ancient authority to the contrary, (King v. Boyles, 1 Stra., 836,) but all the other authorities ancient and modern sustain this position. State v. Dearborn, 15 Mass., 125, and numerous cases cited in High on Extraordinary Legal Remedies, §§ 625, 626. — 87 — The reason is obvious. The State interposes only on the ground that its sovereign rights are interfered with by a usurpation of one of its offices, (that is, of an office that at least derives its authority from the State,) and seeks to clear the office of a usurping incumbent for the purpose of instating the person rightly entitled. Another difficulty resulting from a charge that the defendants were usurping the office of committee of the old second district would have been, that in fact they were not usurping that office, and upon so averring in their plea they would have been sustained by the facts. They were elected to that office by the people of the district, and had the right to the office if any persons had. If they had averred their legal election by that district, the prosecutor could only have denied their election, which would have put in issue not the legal existence of the district, but the regularity of the proceedings under which they were elected. It is clear therefore that in drawing the information the pleader could properly have charged a usurpation only of the office of committee of the new second district. Whether the information by sufficient legal intendment charges this usurpation it is perhaps unimportant to .determine, for giving it that construction the defendants make a complete answer to it by their, plea. They say that, understanding the information to charge them with usurping the office of school district committee of the district described in the information, “ they have not usurped or attempted to exercise, and make no claim to, the office of school district committee of the school district so described.” The plea in which this is averred is with the others demurred to by the prosecutor, and the court below sustained the demurrer, and rendered a judgment that the defendants “ be ousted from the office of school district committee as mentioned in the foregoing complaint.” One of the errors assigned is, that the judgment is erroneous in not showing what precise office the defendants were ousted from by it, the information to which it refers and by which alone it is explained being itself uncertain in its aver- , ment on this point. — 88 — But we think it unnecessary to consider this question as we believe the judgment erroneous on other grounds. The defendants by their plea deny the occupancy of the office which tliey are charged with having usurped, and all claim to it. It is difficult to see how such a plea can be held insufficient, or how a defendant in such a case can properly have a judgment of ouster rendered against him and be subjected to costs. If it is so, any citizen can at any time be served with such a process, even if he has never thought of taking the office he is charged with usurping, and upon pleading, as the only plea that he could possibly make, that he did not claim the office and had never undertaken to exercise it, would be in like manner liable. This certainly cannot be the law. It is true it is laid down in the books that where a defendant admits he has no title, judgment goes against him as of course. High on Ex. Leg. Rem., §§ 745, 747. But this can only mean, where the defendant has actually usurped the office, but admits that he has no right. It cannot apply to the case of a defendant who not merely admits that he has no right, but also avers that he is not in possession of the office, and has never made claim to it. It is clear therefore that the first plea of the defendants should have been held sufficient, and that judgment should have been rendered in their favor. This necessarily reverses the judgment below, and it becomes unnecessary to consider the other pleas of the defendants, but a few words in regard to them may be proper. The first plea is founded upon the construction of the information which makes it allege a usurpation of the office of committee of the school district described in the information—that is, the consolidated or new second district. The second plea proceeds upon the assumption that that construction may be incorrect, and that the office intended was that of committee of the original second district. In the vagueness of the information on this point the defendants could not safely do otherwise than meet this possible construction of the information; and they meet it by averring that they were duly elected to the office by the inhabitants of — 89 — tliat territory assuming to act as a legal school district, and that the term for which they were elected had not expired ; but they do not aver whether the territory was or was not a legally existing school district. We do not see that this plea is insufficient. The legal existence of the supposed district was not a material question. The prosecutor could not deny its legal existence without defeating his own suit by showing that the office which was claimed to be usurped had no legal existence. If the defendants had averred its legal existence, and the prosecutor had denied it, the issue would have been an immaterial one. If the information had in terms charged a usurpation of the office of school committee of the old second district, a plea averring that the defendants held the office by an election regularly held and the term of which had not expired would have been a sufficient answer, and would have put in issue the fact of their election and nothing more. The fact that the territory was assuming to act as a legal district would have been necessarily implied in the charge in the information. In an information against a person exercising the office of selectman of a town to show by what right he holds the office, the legal existence of the town will be implied and the defendant is not bound to aver it. He is only bound to aver his election. Just so if an information is brought against a person holding and exercising the office of Governor of the State, the legal existence of the State is implied, and the defendant need not prove it. People v. Bartlett, 6 Wend., 424. But any further consideration of this and the other pleas is unnecessary, since the information very clearly cannot be taken to mean the office of committee of the old second district, but must be construed as meaning that of committee of the consolidated or new second district. It is only as we give it this meaning that the relator, who claims to be legally a member of that committee, can have an interest in contesting the right of the defendants to the office. It is averred by the defendants in their plea, and of course admitted by the demurrer, that the relator does not reside within the territory of the old second district, and he has therefore no special — 90 — interest, if any whatever, in what may be done by the inhabitants of that territory, whether acting legally as an-independent district, or as a voluntary neighborhood assemblage. State v. Boal, 46 Misso., 529; Commonwealth v. Cluley, 56 Penn. S. R., 270. If the relator desires to try the question of the legal existence of the district represented by the defendants it can easily be done'by an information against the district itself. It can also be done in an action against these defendants assuming to act as a committee, if they resort to any compulsory measures against any persons denying their authority, in which case they would bo guilty of a trespass. The same question can also be made by a refusal by any tax-payer to pay taxes levied' by the assumed district. But we think it clear that the question -of the legal existence of the district cannot be tried in this proceeding against these defendants. People v. Whitcomb, 55 Ill., 172 ; People v. Maynard, 15 Mich., 463; Regina v. Taylor, 11 Adol. & El., 949. There is error in the judgment complained of, and it is reversed. In this opinion the other judges concurred.