Davies v. State ex rel. Scherer

The two cases of David T. Davies, Jr., v. State, on the relation of William H. Scherer, and the case of William H. Scherer v. Arthur H. Rine will be disposed.of in one opinion. The case of David T. Davies, Jr.,-as auditor of the county, against' — 210 — the State, on relation of Scherer, is an error proceeding brought in this court .to reverse the judgment of the court below rendered in an application on behalf of Scherer, as relator, for a writ of mandamus to compel Davies, as county auditor, to approve the appointment of two persons named by Scherer as assistant assessors, and to' deliver to Scherer books and papers pertaining to the office of assessor, Mr. Scherer claiming that he is the assessor of one of the wards or precincts of the city by virtue of his election thereto. The other case of Scherer v. Rine was instituted in the court below but brought to this court by appeal, and is a suit for an injunction to restrain Rine from disturbing Scherer in the. performance of the duties of the office as assessor. We are brought first to a consideration of the question whether or not Scherer', at the time of the institution of these suits, was entitled to claim the office of assessor. He had been duly elected thereto on the 5th day of November, 1907, and he attempted to qualify by filing a bond on the 19th day of the same month. The statute, Section 1518, provides that upon the election of an assessor in any ward or precinct of a municipal corparation, the office-shall be considered vacant, in the event of .the failure of the person elected to give bond and take the oath of office for one week after his election. By Section 1536-3, it is provided : “When the corporate limits of a city or village become identical with those of a township, all township offices shall be abolished, and the duties thereof shall thereafter be performed by the corresponding officers of the city or village, excepting that justices of the peace and constables shall continue to exercise their functions under municipal ordinances providing offices, regulating the disposition of their fees, -their compensation, clerks and other officers and employes, and such justices and constables shall be' elected at municipal elections,5 ’ etc. By Section 1536-998, it is provided that certain official bonds in nxunicipalities, including, as we construe the statutes, the bond of the assessor, “shall, upon its approval, be delivered to the city clerk,” who shall file .and preserye the same áfter — 211 — record. By Section 1536-997, it is provided,, that such bond shall be approved by the mayor. Section 1517-1 provides that in municipal corporations divided into wards, an assessor shall be elected in each ward at eVery annual election. lie shall take the same oath, give the same bond and perform the same duties as are provided for township assessors. The section immediately preceding 1517 provides as to the character of the bond to. be given by the township assessor, so that -the two sections must be read together to determine the duties of the municipal assessor. Sections 1517 and 1518, to which I have already referred, are carried into the municipal code, and the code has provided for the amount of the bond to be given. On April 8, 1908, after Scherer’s election, an official oath was taken by him, and on the 13th the city council undertook to pass a resolution approving his bond, and the mayor undertook to approve the act of the council, the bond having been fixed at one thousand dollars. There was never any approval of Scherer’s bond by the mayor. He did nothing, so far as the record discloses to us, but approve the resolution of the council. By Section 1536-999, it is provided that: “The council may declare vacant the office of any person elected or appointed to an office who shall fail to take the oaths required in Section 1737” (which in this 6th edition is given as 1536-996) “or to give any bond required of him within ten days after he has been notified of his .appointment, or election, or obligation .to give a new or additional bond, as the case may be.” This seems to have application to bonds generally, but by the section to which reference has already been made, 1518, specific provision is made with reference to assessors, and it is provided, in effect, that as to this office, perhaps because of the need of filling it speedily after election, the office of assessor shall be considered vacant, without waiting for the council to declare it so. The Legislature probably made this enactment in view of the conditions existing, of a legislative character, as to the time off election, when, -the enactment was made, but they have permitted Section 15.18 to remain in force notwithstanding the sub — 212 — sequent changes as to the. time of holding municipal elections. A deputy auditor, Mr. Otto Sanzenbacher, attempted to approve the bond of Scherer, but we are quite clear in our view that the approval of an official bond is an act requiring such judgment of the officer attempting to exercise such approval that it can not be done by a merely ministerial officer, and we do not think that a deputy auditor is clothed with the power attempted here to he exercised. The same thing is true as to the appointment of assistants. It is an authority given to the assessor. The assessor names the .assistants, and the appointment is to be exercised or approved by the auditor, and it is a power which he could not delegate to another. Now coming directly to the question, based upon the legislative enactments to which I have referred, and the view which I have expressed as that of the court, whether or not Mr. Scherer at the time of the institution of these proceedings was the legally appointed and qualified assessor, or in other words, whether he was the de jure officer, I desire to cite certain .authorities which seem to me decisive of the question. I have before me the case of The State, ex rel Attorney-General, v. James M. Matheny, 7 Kans., 327, in which it is held that the failure of a county clerk-elect to file his official oath -and bond with the county treasurer within twenty days after the commencement of the term for which he was elected, vacates his office. In State, ex rel Berge, v. Lansing, 64 N. W., 1104, decided by the Supreme Court of Nebraska in 1905, it was held: “Section 716, providing that ‘if any person elected or appointed to any office shall neglect to have his official bond executed and approved as provided by law, and filed for record within the time limited by this act, his office shall thereupon ipso facto become vacant’ construed, and held to create a condition precedent to the right of a person so elected or appointed to be inducted into office. ’ ’ This is the decision of the court, although two of its judges dissented. The fourth paragraph of the syllabus is: ‘ ‘ Held, further, that such provision is self-executing, and that unless the official bond, where one is required, is filed within the — 213 — time provided by law, the person elected loses all right to the office, and the vacancy can be filled without any previous judicial determination of the fact.” The ease is interesting because of the conclusions arrived at by the court, and .also the comment in the opinion upon other eases, which are collated on page 1109. Numerous cases are cited, and the judge speaking for the court says: “It will thus be seen that the overwhelming weight of authority under statutes much less mandatory than our own is to the effect that, where a -time is prescribed within which one, in order to be inducted into .an affiee, must .take -the oath or file a bond, -the taking of the oath or the filing of the bond is a condition precedent to the right to enter upon the office, and that the right is absolutely, lost by a failure to perform the condition within the time limited. ’ ’ We have a general provision in our statutes, which has found analogies in the phraseology of those of some other states. Section 19, Revised Statutes', reads as follows: “Any person elected or appointed to an office of whom bond or security is by law required previous to the performance of the duties imposed upon him by his office, who refuses or neglects to give such bond or find such security,. agreeable to, and .within the .time for that purpose prescribed by law, and in all respects to qualify himself for -the performance of such duties, shall be deemed to have refused to accept the office to which he was elected.or appointed, and the same shall be considered vacant, and be filled -as provided by law.” This section also should be read in connection with Section 1518 referring specifically to .the office of assessor. In Section 19 we have the provision as to the inference which is to be drawn from the refusal or neglect of the assessor to qualify. He “shall he deemed io have refused” -the office; and in Section 1518 we have the provision specifically provided as to the assessor’s office, that if he fail to take the oath of office for one week after his election, “the office shall he considered vaeanl.” Taking the two sections together, there seems .to be no escape from -the conclusion that the failure to file his bond and take the oath of office within the .time and in the manner provided by — 214 — law, raises the presumption that he has declined the office, and also that it has become vacant. The statute says “it shall be considered vacant, ’ ’ and the other provision that, under certain circumstances and as to certain municipal officers, the council may declare offices vacant, has no application to the circumstances of the present ease. The vacancy is not dependent on such declaration by the council. The Supreme Court of the state of Arkansas, Falconer v. Shores, 37 Arkansas, 386, has decided that .the sheriff is by law ex-officio collector of revenue, but if he fails to give bond as such collector by the time prescribed by the statute, the first Monday in January, he forfeits -the office and can not be restored to it by executing the bond afterwards. I cite this case because of the attempt made by Scherer, after the expiration of the time allowed by law for his qualifying, to take the oath of office and file the bond, obtaining the .approval of the deputy auditor. After the office has become vacant, and after the conclusive presumption has been raised of his intention to decline the office, it would seem ¡that there is no power in Mr. Scherer to restore himself to the office by any subsequent acts. The case cited in the 25th Ohio State at page 567, Kelly v. The State, does not .affect the law governing the present ease. In that case a question of estoppel was raised as against the sureties upon the bond of a county treasurer who had riot qualified within the time required by .the law, and it was held that as against such sureties .the principle of estoppel would arise. The officer attempted to qualify after the expiration of the time provided by statute, and then proceeded to perform the duties of the office, and the public, treating him as an officer de †ado, and transacting business with him, acquired rights by virtue of the equitable principle of estoppel. But no such principle or question has been raised in the present case. On page 577 is some language which is probably diclum, but still should be given such force as we ordinarily give to expressions of that character by the judges of the Supreme Court, and it may be read: ‘ ‘ The effect of the treasurer’s failure to give bond, or take the oath of office, on' or before the- first day of the term, involves a more serious question.” — 215 — Then the statute is quoted, which says that upon such failure the office shall be held to be vacant, and malees it the duty of the commissioners to fill it by appointment; and Judge Welch says: ' "I suppose the true construction of this statute ¡to be, that upon such failure to give bond and take the oath, the office ipso facto becomes vacant, without any resolution of the commissioners to that effect, and without the appointment of any one to the office, and that the treasurer-elect in such ease is liable at any time thereafter to be ousted from the office by a proceeding on the part of the public, or of .an appointee. It seems to us, however, that the treasurer an cl his sureties are estopped from setting up this defense. ’ ’ Here we have by this dictum a recognition of the principle which seems decisive in the present case, where no question of estoppel has been raised, where the public has not been injured, and is not seeking to protect its rights as against a defective officer or the sureties upon his bond. A dictum to similar effect appears in the opinion in State v. Hopkins, 10 Ohio St., 511, quid vide. A more decisive ease is that of The State, ex rel Poorman, v. County Commissioners, 61 Ohio State, 506, holding: "If one elected to the office of sheriff fails, without justification, to give an official bond before the first Monday of January nest after his election, there occurs on that day a vacancy in the office which the county commissioners should fill by appointment. ” The court in that ease, and. the decision was per curiam, ap¿ plied the principles of Section 19, which I have read, and also Sections 1203 and 1205 of the Revised Statutes, considering this general section number 19 applicable to the case of the failure of a sheriff to qualify, although there were specific provisions for his qualification, just as in the present case we have specific provisions for the qualification of an assessor, and as to the effect of his failure to qualify within the time provided. Section 1203 of the sheriff act provided that, "the sheriff or coroner shall, within ten days after receiving their commissions, — 216 — and before the first Monday of January next after their eleetion, give bond to the state with two or more sureties' approved by the county 'Commissioners”; and Section 1205 provided that, “If the sheriff or coroner fails to give bond within the .time above specified, or fails to give additional sureties on his bond, or a new bond, within ten days after he has received written notice that the county commissioners' require such additional surety or new bond, then the said commissioners shall declare the office of such sheriff or coroner vacant and said office shall thereupon be filled as provided by law.” But it will be noted that, although there was the provision quoted as to the declaring of the office vacant by the commissioners, the syllabus of the case holds that the office, on the very day when the bond should have been filed, became vacant. Without considering for the time being the question whether the appointment of Rine by the auditor made him the de jure officer, it can not be held that Scherer became a de jure officer merely by virtue of his eleetion and his attempted qualification in the April after such election. The question remains, and has seemed to us one of vital consequence in the ease, whether a merely de facto officer can maintain a proceeding in mandamus to compel the recognition of anjr rights in him as an officer, and an examination of the authorities and a consideration of the principles involved lead our minds to the conclusion at which we have unanimously arrived, that a de facto officer does not possess the same rights as to maintenance of proceedings for mandamus that are held by an officer de jure. The ease of Ex Parte Harris, 52 Alabama, 87, holds: “Mandamus is not a proper remedy to try the right to public office, of which there is a de facto incumbent, nor will it lie in any ease to compel performance of duty or exercise of power, unless the relator has a clear legal right to demand it and is without .any other adequate and specific remedy.” On the qiiestion as to the right of a mere de facto officer to maintain mandamus, I invite attention to the definition of the expression “officer de facto” as found in Mechem on Public Officers, Section 317. I will not stop to read, but in one of the paragraphs of the section it is sa.id: — 217 — “Thus if the title of the assumed officer be directly assailed by the state, in a proper proceeding, it will be necessary for him to show himself something more than an officer in fact. So in a direct proceeding brought by the assumed officer himself to secure rights which belong only to an officer de jure, it may be necessary for him to show himself to be such. ’ ’ Now is not that the present ease? Here is a person who claims to be performing some of the functions of an officer, in other words, to be an assessor de facto. He says that he was to a certain extent recognized by the auditor at one time as an assessor; that he came into possession of some of the necessary blanks or papers, and that he inspected or viewed at one time certain structures, and that he was elected by vote of -the people to the office. In order to fortify his pqsition and sustain claims to being a. de jiore officer, he seeks t^ get, other indicia or evidences of his right to the office: But that is a kind of fortification of title which we think it is not the province of the proceeding in mandamus to bring to him. He must do it in a direct proceeding in the nature of quo warranto, or in some other way. He must bring the title to his office directly into issue. Section 322 of this same work has this language: “It is evident that two different persons can not, at the same time, be in the actual occupation and exercise of an office for which one incumbent only is provided by law. There can not, therefore, be an officer de jure and another officer de facto in possession of the same office at the same time: Hence if the officer de jure is in, there is no room for an officer de facto; and if the officer de facto is in, the officer de jure can not be in also.’’ There are two cases from other states bearing directly upon this question. One is that of People, ex rel Sullivan, v. Weber, 86 Illinois, page 283, holding — I read the third, fourth and fifth paragraphs of the syllabus: “Where one claims rights as an officer, by virtue of his office, he must show that he is legally entitled to act — -that he is an officer de jure as well as de facto. “The acts of an officer de jure are valid and effectual everywhere when within the limits of his authority; but the acts of — 218 — a de facto officer are valid only so far as the rights of the public, and of third persons having an interest in such acts, are involved; but such officer can claim nothing for himself. “The title of a de facto officer can not be inquired into in a collateral way between third parties, but it may be inquired into where he is suing in his own right as an officer. ’ ’ He is so suing here. He is claiming that he is an officer; he is insisting that he is entitled to the paraphernalia or insignia or indicia of his office; that he must have the tools, the furniture; that he must have everything that pertains to the office which he claims to hold. In other words, the title to the office is drawn directly in question in the first instance, and it is not enough for him to say, “I insist upon being clothed with all the rights and powers appertaining to the office, because I am exercising some of the powers appertaining to the office.” The Supreme Court of Indiana has made a like holding in Glascock v. Lyons, 20 Indiana, 1: “If a person, rightfully in the possession of an office to which he is entitled, is ousted therefrom by an intruder, an action for money had and ‘received would lie in his favor against the usurper to recover the fees, when fixed of customary fees are incident to the office. “And in such an action the title to the office may be determined. “A person who is rightfully entitled to an office, although not in the actual possession of it, has a property in it; and against a mere intruder, who may perform the duties of the office for a •time,'' and receive the fees arising therefrom, he may maintain an action for money had and received to recover such fees, and such intruder can not retain any part thereof as compensation for his labor.” We are too prone to forget, in our construction of eases affecting the incumbencies of office,' that an office is not a mere institution like an almshouse or an orphans’ asylum, provided for the benefit of an incumbent, but it is a place of service. It is established for the benefit of the public, and the statutes are to be construed and enforced in the light of -that fact. We hold that upon the views already expressed, viz: first, that Mr, Scherer has not shown himself .to be 'a de jure assessor, — 219 — and, second, that the proceeding in mandamus will not lie in favor of one who is not such, that the writ should be refused. Our judgment is strengthened somewhat by the fact that the auditor himself has récognized, and is recognizing, another person as the- de jure assessor; has approved the appointments of assistants for such assessor, and has given him the books and papers pertaining to the office, bringing the case very much on á parallel with that suggested in Mechem, Section 322, supra, where it is said that there can not be two officers, one de facto and one de jure, at the same time, when the de jure officer is in possession. It would seem that at the beginning of these proceedings, no matter what had happened before, Scherer was no more de facto officer than Riñe; that is to say, he was no more acting than Riñe; he was no more in possession of the apparent evidences of an incumbency than was Riñe, and for that reason, in addition to those already suggested, it' would seem as if mandamus was not a proper proceeding to determine which of •the two men was entitled to office. Again, his proceeding is not against Riñe; it is instituted against the county auditor, and no rights of Riñe can be determined in the mandamus proceeding against the auditor. "" ' Coming to the injunction suit which was brought by Scherer, claiming to be at least an officer de facto, and asking that he be not disturbed in the exercise of the duties' of his office, it may be repeated that such application must be made because of the danger to the public, rather than because of any deprivation of benefit to himself. It is because, if he is disturbed in the performance of his duties while he is the one de facto officer, the public will be injured. When the case was first presented to us, and upon the showing then made and citation of authorities, and such examination as we were able to give to them, we concluded that, while the testimony was somewhat meager and vague in support of the claim of Scherer that he was a de facto officer, still there was enough to justify his claim, and we were disposed to grant the injunction. But much light has been given to us in the re-discussion of the case in connection with the presentation of the mandamus proceeding. It is not that — 220 — new evidence has been offered, but we have had time to give to the whole matter more careful consideration, and it has been brought more clearly to our minds that no interest of the public can be subserved by preventing Rine from going on and performing the duties which are devolved upon him-by the appointment. It is now made probable as between Scherer and Rine, who are both parties to the injunction suit, that Rine is the officer de jure as well as de fació. He was appointed, as the statute requires, by the auditor. He was appointed after the office had become vacant by reason of the failure of Scherer to qualify; and Rine was not appointed by a deputy, but by the auditor, as the statute requires. He has filed his bond with the auditor pursuant to a like requirement; he has, so far as appears, qualified regularly, and under those circumstances we are not now disposed to prevent him from performing the duties of the office, and thereby increasing the entanglement between these two gentlemen who are both claiming to be assessors-. We have -arrived at -the unanimous conclusion, not only that the writ of mandamus - should be refused, as already stated, but that we should not grant the injunction asked by Scherer. The contrary view previously announced in the injunction suit has not been embodied in any entry on the docket of the court or' the journal, and for this reason it is not necessary to put the present decision in the form of setting aside a judgment. We have simply reconsidered the case, and the judgment of the court will be as an original one. The injunction will be refused and the petition of the plaintiff dismissed. On the cross-petition of Rine, which asks an injunction against Scherer of like character, we have concluded that the facts warrant us in granting it and the judgment will be entered accordingly.