Lindsay v. People

1 Idaho 438

• Court: Idaho Supreme Court
• Decided: January 15, 1872
• Status: Published

Opinions

Opinion by

Whitson, J.;

Hollister, J., concurring specially in the judgment. Noggle, 0. J., dissented.

This cause is brought to this court upon two assignments of error, viz.: 1. The complaint is insufficient in law to maintain the action. No user of the office by either of the claimants is shown by the complaint or either of the answers, and it appears upon the face of the pleadings that the term of the office for which the defendants claimed had not yet commenced at the time of the beginning of the action. 2. The judgment is null and void upon the ground that the trial was had before the finding of facts was made and the judgment rendered by the judge at chambers, and not at any term of the district court.

The action was commenced at the November term, 1870, of the district court of the third judicial district of Idaho territory, in and for the county of Ada, and by stipulation of the parties the cause was continued beyond the term. and upon five days’notice, as stipulated, the cause came on to be heard on the twentieth of December, 1870, at which time all the parties to the action appeared and went to trial upon the issues formed by the complaint and answers of the two defendants. The defendant Lindsay, however, moved to have the action dismissed, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, in this, that it contains no allegation that either of said defendants has usurped, intruded into, or unlawfully holds or exercises the said office of sheriff of Ada county, Idaho territory. At what particular stage of the proceedings this motion was made does not appear, except that it was made and denied on the twentieth of December, 1870. The complaint discloses that the term for which the defendants claimed to have been elected would commence on the first Monday of January following. The answers of the defendants admit all that is alleged in the complaint, besides alleging the grounds upon which they claim to be entitled.

Neither claims any right to the office before the first Monday in January, nor is such an allegation made against them. The judgment of the court was as follows: viz.:

“ On the twentieth day of December, 1870, this cause came on to be heard, as per agreement of parties, upon notice duly given, before Hon. J. B. Lewis, judge of the third judicial district of Idaho territory, at chambers, in Boise city, Ada county, Idaho territory, on the pleadings and evidence. The People appeared by Jos. W. Huston, Esq., United States district attorney. The defendant, L. B. Lindsay, appeared by Messrs. Bosborough, Brumback, Heed, and Miller, and the defendant, Vm. Bryon, by John B,. McBride and H. E. Prickett, and the evidence, pleadings, proofs, and exhibits having been heard and considered, and the findings of fact and conclusions of law of said-judge having been made and filed, whereby it is decided that the defendant, Wm. Bryon, at the general election held in and for said county, on the sixth day of June, A. D. 1870, received for the office of sheriff of said county of Ada a majority of all the legal votes cast for said office of sheriff, and was duly elected to said office of sheriff of Ada county, for the term of two years from and after the second day of January, 1871. Now, therefpre, it is hereby adjudged that the said Wm. Bryon was duly elected to said office of sheriff of Ada county, Idaho territory, at the election held in said county, on the sixth day of June, 1870, for the term of two years from and after the second day of January, 1871; and that the right to said office for said term be and the same is hereby awarded to him, the said Wm. Bryon.

“It is further adjudged that the said defendant, L. B. Lindsay, was not elected to said office at said election, and that he be precluded therefrom.”

While in some instances this court might conclude that the defects of the complaints were cured by the evidence in this case, we are precluded from any such conclusion, because the judgment in the case discloses that the judge only found that on the second of January, a time not yet arrived, Wm. Bryon would be entitled to the office, and that L. B. Lindsay would not. We can not presume that the judge found Lindsay intruding into an office not yet even claimed by him, and the very wording of the judge is, that Lindsay be precluded, not excluded, therefrom.

It is, however, claimed that section 279 of the civil practice act was intended to try the right to an office before the actual intrusion into it. That section is one of seven under the title of “ actions for the usurpation of an office.” The first section under that title provides for an action upon the information of the district attorney, or the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military. The second section of the act provides that, in addition to the statement of intrusion, it may also be set forth in the complaint who is rightly entitled to the office, and in such case, upon proof by affidavit, that the usurper has received fees or emoluments, he may be arrested and held to bail as in other civil actions. The third section provides that judgment may be rendered upon the right of the defendant, and also upon the right of the party alleged to be entitled, or only upon the right of the defendant, as justice shall require. The fourth section of the act provides, that if judgment be rendered in favor of the person alleged to be entitled, he shall be entitled after taking the oath of office, and executing the official bond, to take upon himself the duties of the office. The fifth section of the act provides, that if judgment be rendered in favor of the person alleged to be entitled, he may recover by action the damages sustained by reason of the usurpation. The sixth section of the act provides, and this is the section upon which counsel for Bryon rely, that “where several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise.”

It is claimed that two persons can not intrude into the same office at the same time, and therefore that the section just cited must mean that the action can be begun and tried in advance. It is undoubtedly true that two persons can not, one de facto and the other de jure, be in possession.of the same office, at the same time, where the office is of such a character that the law only provides for one incumbent; but does it necessarily follow that this law was made expressly for this case, or one similar to it? Might it not have been intended for that class of cases where two or more persons are required by law to fill the office ? Suppose that at the next election three new county commissioners should be elected, and the present incumbents should refuse to give up to the newly elected officers, would not this section be the very one which the district attorney would go to for authority to bring his action ? But the answer to this is, that the statute provides that the singular number shall include the plural and the plural the singular, and therefore it might be brought under the provisions of section 1 of the act.

This course of reasoning would just as well allow A. to sue B. and C. together, where he had a separate cause of action only against each. Each county commissioner of Ada county has a separate and distinct title to his office, and his right does not depend, so far as his election is concerned, on the title of the other two, although the office is joint and requires all three to fill it. Without the aid of this section, if these commissioners should attempt to usurp the office, separate actions would have to be commenced against each of them to try their respective titles, and yet this could not be done under this section until there was an actual user.

Section 7 of the act seems to answer the whole question, which provides that “when a defendant against whom such action has been brought is adjudged guilty of usurping or intruding into, or unlawfully holding any office, franchise, 'or privilege, judgment shall be rendered that such defendant shall be excluded from the office, franchise, or privilege, and that he pay the costs of the action. The court may also, in its discretion, impose upon the defendant a fine not exceeding five thousand dollars.” The section just cited provides that in such action, if the defendant is adjudged guilty, he may be fined and shall be excluded from the office. If there are two classes of actions provided for in the act, it is impossible to so determine from anything which appears in the first five sections of the act, and the seventh section certainly precludes any such construction.

Section 40 of an act relative to elections is thought to throw some light on the subject by providing that the manner of contesting elections in that act shall not impair in any way the right of any person to contest any election in the manner otherwise provided by statute. What is the manner otherwise provided by statute? Why, the old common law remedy, or rather an action which has taken its place, by an information in the nature of quo warranto, as provided for in section 274, and the six sections following under which an election can be contested, but not until there has been an actual user.

If section 279 is intended to try cases like the one at bar, then the legislatures of New York, California, Oregon, and Idaho have been very stupid. All three of those states have almostthe identical act with ours in relation to the usurpation of an office of franchise, and in New York and California, under the title of “actions for the usurpations of an office,” there is a section identical with ours, section 279. In each of those states the legislature has provided a way to contest elections independent and outside of the action for the usurpation of an office. Our legislature attempted to pass a law for the contesting of elections, but conferred the power upon a court which this court has decided could not have any common law jurisdiction conferred. Bach of those states has, then, undertaken to provide for contesting elections in a separate statute from the one providing for the excluding of an intruder.

It is unreasonable to suppose that New York, which has the most complete code of practice of anysfcate in the Union, would make complete and ample provision for contesting an election, and then place a small, and, when placed alone, a senseless section of about three lines under a title and between the sections of a law to which it has no reference and bears no relation. It will not be contended with any seriousness that actions in the nature of quo warranto can be sustained in cases where there is no user. It has been held in New York, that “an information does not lie against persons for merely claiming a corporate franchise, and if the information charge them with claiming without authority, and exercising the franchises of a corporation, etc., a plea denying the user is sufficient.

There is no such action known to the common law as contesting an election before user, and no authority has been conferred on the district courts by statute for trying.the title, except by an action which has taken the place of the old action of quo warranto.

It is claimed, however, that this ease is res judicata, and that it has been decided, so far as the jurisdiction of the court was involved in the decision of the motion, to quash the certiorari brought to this court at the last term.

Justice Lewis tried this case originally, and at the last term a writ of certiorari was allowed to bring the case into this court, and upon a motion to quash the writ, Justice Lewis delivered the opinion of the court. The judge no doubt felt a very natural desire to have the proceedings below sustained. He went into a very elaborate and unnecessary opinion, in which I concurred generally, as appears of record, when in fact I ought not to have concurred, as I only intended so to do except as to the judgment, and it is not now necessary for me to express my opinion as to all the "questions therein discussed. It has become the law so far as these questions have been adjudicated. A decision then that the court did have jurisdiction of the ease was as binding upon the parties as the decision of this court would now be that it did not. I can not go back of that decision without stultifying myself, however much I might desire, because it has become the law of the ease as much as any statute could make it.

The court in that case said: “The matter in dispute in this case was the office of sheriff.” Both Lindsay and Bryon claimed to be entitled to the office, and the question to be determined was the respective rights of the parties to such office. It is claimed by Lindsay that the court below erred because it was not alleged in the complaint that one of the defendants had usurped said office; that the court or judge had no jurisdiction of the subject-matter. Section 279 of the civil practice act provides that when several persons claim to be entitled to an office, an action may be brought against all of such persons to try their respective rights.

Now it is clear that but one person can be in the actual possession of an office; hence, if the view of Lindsay be correct, section 279 has no force, because several persons can not at the same time usurp an office. But be this as it may, there is no doubt but that the court below had,jurisdiction of the subject-matter.

However much I might be disposed to reverse this case, had it not before been in this court, I think that the parties secured, in the case of the certiorari, a decision upon the jurisdiction of the court over the subject-matter, which.is conclusive in all future stages of the same case-. The question of the right of the judge to try the case at chambers was not decided in the certiorari case, and that question is properly here for review.

The parties stipulated to try the case in that way; and while it is true that no consent will give jurisdiction of the subject-matter, tbe court, under the decision above cited, needed no jurisdiction of the subject-matter, and therefore the consent given was not of jurisdiction of the subject-matter, but of the parties, and of the manner and time of trying the case.

The great mistake made by Lindsay, was in bringing his certiorari, in the first instance, and getting an adjudication upon the only good point in his case, and the very one upon which he asks this court to adjudicate differently from what it has already done. It may be insisted, that because he was told in that case to bring his case here upon a writ of error, therefore it was not intended to pass upon those questions. By inspection of the decision, it will be seen that the court did not pass upon the chambers jurisdiction, and therefore a writ of error was necessary to test that question. So far as the other question is concerned, while the court passed upon it, it stated that, conceding that the court had exceeded its jurisdiction, the proper mode of getting here was by writ of error.

For these reasons, however erroneous the judgment, I think it will have to be affirmed.

Judgment affirmed.