Cruse v. State ex rel. Harpham

Norval, J. This cause originated in the district court of Adams county. It was an application by the state on- the relation of F. E. Harpham for a peremptory mandamus to compel the respondent to turn over to him all the books, papers, and moneys in possession of respondent pertaining to the office of treasurer of school district No. 69 of Adams county. Upon the hearing, a peremptory writ was granted as prayed. It appears'that the respondent, on and prior to November 7, 1893, was the acting treasurer of said school district, and on said date, at a meeting of the school board of said district, his official bond was found and declared insufficient, and in pursuance of the provisions of section 8, subdivision 4, chapter 79, Compiled Statutes, respondent was required to give additional security or a new bond within ten days. He having failed and neglected to comply with said request, the director and [832] moderator of said district, on November 18, 1893, .under the authority of said section 8, declared vacant the office of treasurer of said school district, and called a district meeting to be held on December 1,1893, to choose a successor, at which time the voters of said district elected relator as treasurer, who qualified and filed his bond as required by law, and ever since has been discharging the duties of his office. Bespondent, although requested so to do, has refused to deliver to relator the books, papers, and moneys belonging to the office. The sole question is whether mandamus is the appropriate remedy. Bespondent insists that it is not until the relator has first established his right to the office by a proper action. Unquestionably the title to a public office cannot be adjudicated on an application for mandamus. However, in such a proceeding, sufficient investigation may be made to ascertain whether relator has a prima facie title to the office. (State v. Plambeck, 36 Neb., 401; McMillin v. Richards, 45 Neb., 786.) The purpose of this proceeding was not to have judicially determined the title to the office of treasurer of said school district, nor was the title to the office adjudicated. The evidence adduced discloses that relator has a prima facie right to the office by having been elected at a district meeting duly called for that purpose under and in pursuance of section 8, subdivision 4, chapter 79, Compiled Statutes, and qualified as such officer according to law. Bespondent recognized the validity of said election by participating therein, he having been a candidate against relator for the office of treasurer. Obviously he hath riot color of title to said office, and mandamus is the proper remedy to compel him to surrender possession of the books, papers, insignia, and moneys belonging to the office to the person who holds the prima facie title to the office. (State v. Archibald, 66 N. W. Rep. [N. Dak.], 234; State v. May, 17 S. W. Rep. [Mo.], 660; State v. Johnson, 11 So. Rep. [Fla.], 845; Huffman v. Mills, 18 Pac. Rep. [Kan.], 516; Cameron v. Parker, 38 Pac. Rep. [Okl.], 14; [833] Ewing v. Turner, 35 Pac. Rep. [Okl.], 951.) The judgment is Affirmed.