State ex rel. Grubb v. Marks

Per Curiam. This is a mandamus proceeding involving the right of possession of the offices of county commissioners of Burke county. It [1217] arises out of the removal proceedings against John O. Grubb and H. A. Kirkilie, and was submitted at the same time as State v. Grubb et al., ante, 1212, 189 N. W. 326, and involves the right of possession of the same offices involved in that proceeding. It appears that after the district court had rendered the decision reversing the removal order entered by the Governor and reinstating Grubb and Kirkilie in their respective offices, the two persons, namely, E. J. Marks and Jacob Dewing, who had been appointed to fill these offices after Grubb and Kirkilie had been removed'by the Governor, refused to surrender the offices, and said Grubb and Kirkilie instituted a mandamus proceeding to compel said persons to surrender the offices to them. It further appears that the sole ground on which Marks and Dewing claim the right to said offices is that they were entitled to hold them until the removal proceeding had been terminated; and that inasmuch as an appeal had been taken from the judgment setting aside the Governor’s order of removal, they were entitled to possession of the offices until such appeal was determined. Upon the oral argument, however, it was stated that Grubb and Kirkilie had been permitted to come into possession of the offices in controversy during the pendency of the appeal, and that they are at the present time occupying the offices and performing the functions thereof. In State v. Grubb et al., ante 1212, 189 N. W. 326, the position taken by Marks and Dewing has been held to be untenable. Under the judgment of the district court, as affirmed by this court, Grubb and Kirkilie are the lawful incumbents of the offices; and under the conceded facts before us they are now in possession of such offices. Hence the questions involved in the mandamus proceeding have either become moot or are controlled by the decision in State v. Grubb et al., supra. Appeal dismissed, without costs to either party. Birhzell, C. J., and Robinson, Christianson, Grace, and Bronson, JJ., concur.