Matney v. King

93 P. 737, 20 Okla. 22

• Court: Supreme Court of Oklahoma
• Decided: January 9, 1908
• Docket: No. 6
• Status: Published

Opinion

KaNE, J.

(after stating the facts as above). Section 2, art. 7, of the Constitution, provides that: “The original jurisdiction of- the Supreme Court shall extend to a general superintending control over all inferior courts, and all commissions and boards created by the law. The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and such other remedial writs as may be provided by law, and to hear and determine the same.” This provision practically places the Supreme Court in the same relation to the inferior courts • of the state as the court of King’s Bench bore to the inferior courts of England, under the common law. Chief Justice Marshall in an early case (Ex parte Crane et al., 5 Pet. [U. S.] 190, 8 L. Ed. 92), discussing the supervisory powers of the Supreme Court of the United States over the proceedings of the inferior courts by the writ of mandamus according to the principles of the common law, said:

“In England the writ of mandamus is defined to be a command issued in the King’s name from the court of King’s Bench and directed to any person, corporation, or inferior court of judicature within the King’s dominion, requiring them to do some particular thing therin specified which appertains to their office or duty, and which the court of King’s Bench has previously determined, or at least supposes, to be consonant of the right and justice. Blackstone adds that: Tt issues to the judges of any inferior courts, commanding them to do justice according to the powers of their office whenever the same is delayed. For it is the peculiar business of the court of King’s Bench to superintend all other inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the Crown or Legislature have invested them, and this, not only by restraining their excesses, but also by quickening their negligence and obviating their .denial of justice.’”

The Supreme Court of New York, in Sikes v. Ransom, 6 Johns. 279, discussing the power of the Supreme Court of that state to compel judges of the court of Common Pleas to amend a bill of exceptions according to the truth of the case, uses the following language:

“Why cannot the writ of mandamus issue from this court? We have the general superintendence of all inferior courts, and are bound to enforce obedience to the statutes, and to oblige subordinate courts and magistrates to do those legal acts which it is their duty to do.”

At common law the writ of mandamus is a writ of right every day made use of to oblige inferior courts to do justice, but it will not be made use of to control the exercise of discretion. In general, it lies where one has refused to be admitted or turned out wrongfully from any office or franchise. People v. Superior Court, 5 Wend. (N. Y.) 126; Commercial Bank v. Canal Commissioners of New York, 10 Wend. (N. Y.) 29, 3 Burr. 1266. The clerk of the district court .is an officer of the court, and in order to properly perform the duties devolving on him by law it is the duty 'of the judge of the court to recognize him as such officer.

In the case at bar the respondent states in his return that he did not pass judicially upon the certificates of election presented to him by the relator, or Carroll S. Bucher, giving as his excuse therefor that by reason of the claim of Carroll S. Bucher to the same office, the respondent could not pass upon the claim of either party without passing upon the title to the office. So the question of interference with judicial discretion is not in this case, as I view it. This case is quite distinguishable from In re Parsons et al., 150 U. S. 150, 14 Sup. Ct. 50, 37 L. Ed. 1034. It will be seen by the statement of Mr. Chief Justice Fuller in the Parsons Case that -the court below “considered in connection with the evidence introduced by the respondent, the commission of O’Neal under which he had duly qualified, which was exhibited to the . court on the 19th of June, 1893, when he was recognized as United States Attorney. This commission bore date. May 26, 1893, and appointed O’Neal the attorney for the United States for the Northern District of Alabama, in due form.” After hearing all the evidence offered by the parties the court entered its judgment ■in due form. In the case at bar the respondent states in his return that he did not take into consideration any of the evidence or certificates offered by the various claimants, and did not pass judicially on the claim of the relator, or Carroll S. Bucher. The following is taken from the response of the repondent:

“Your respondent states that he was then of the opinion and is now of the opinion that he had no power to judicially determine who the rightful claimants to any of the said county offices were and are. Your respondent states that the Republican candidates for county offices had each a certificate of election, and the Democratic candidates for county offices had each a certificate of election and, not desiring to appear partisan in his action, this respondent made an order recognizing two Republicans claimants and two Democratic claimants.”

The respondent was in error in refusing to consider the evidence offered by relator to support his claim. The office of clerk of the district court, under the law is to be.filled by election, and 'the respondent had no authority to fill the office by appointment. ■One of the persons voted for at the election was entitled to the office, and that one was the person holding the prima facie title to the office. When the respondent refused to recognize the person holding prima facie title, mandamus was the proper remedy to compel such recognition.

The Supreme Court of Oklahoma, in Cameron v. Parker, 2 Okla. 277, 38 Pac. 14, laid down this rule:

“In an elective office the law requires that the credentials of the person declared duly elected shall be a certificate of election, or, in an appointive one, as in the case at bar, a commission from the Governor. This is the highest evidence of title the law requires, and it is not for an individual to assert the invalidity of the law authorizing it, the want of authority for its issuance, or the legal exercise of the power conferring it. These are questions for the courts to determine. But in the meantime the person holding the commission or certificate of election, legal upon its face, evidencing the absolute prima facie title to the office, is entitled to the possession of the books, records, and official belongings thereto, notwithstanding the actual title may be in controversy at the time, and in the same or another tribunal.”

This case has a good many of the features of the case at bar. It is true that in the Cameron Case the writ ran against Parker, the adverse claimant to the office, but in the case at bar the respondent makes the certificáte of Cárroll S. Bucher part of his response. So both certificates, and all the facts on which respondent bases his refusal to act, are before the court, as were the certificates and facts upon which the .parties based their respective titles in the Cameron Case. In that case the court went far enough into the claim of each of the parties to determine which held the prima facie title to the office, not for the purpose of trying the title to the office, for this it is well settled may not be done in a mandamus proceeding. Quo warranto is the proper method of determining disputed questions of title to public office, yet a mere groundless assumption of an election on the part of a person claiming title to public office, and the apparent exercise of the functions of the office de facto, will not deter the court, as a preliminary question, from examining the uncontroverted facts before it for the purpose of determining who Las prima facie title, notwithstanding the person claiming adverse title may not be a party to the proceeding.

On this point the case of Delgado v. Chavez, 140 U. S. 586, 11 Sup. Ct. 874, 35 L. Ed. 578, is strongly in point. The facts in the Delgado Case, as stated by Justice Brewer, are as follows:

“On the 13th of January, 1891, Abraham Staab, William Nesbitt, and Juan Garcia filed in the district court of the First judicial district of the territory of ’ Nfew Mexico, and presented to the Judge thereof, their petition showing, as they claimed, that they had been elected at the general election in November preceding members of the board of county ty commissioners of Santa Fe county, in the territory of New Mexico; and further alleged that on the 2d day of January, 1891, they had duly qualified as such commissioners; that at the same election Pedro Delgado had been duly elected probate clerk of said county, and had qualified as such officer; that by virtue thereof he became and .was the acting clerk of the.board of county commissioners, and had possession of the records; books, files, and papers of that office; that after their qualifications as such board they demanded of him to produce the books and to record their proceedings as such board; and that he refused so to do, or to in any manner recognize them as' the board of county commissioners. They prayed that a writ of mandamus might issue commanding him to recognize them as the board of county commissioners, that he act with them as such board, and that he enter of record their proceedings as a board. Upon this petition an alternative writ was issued; and on the 15th day of January, in obedience to such writ, appellant appeared and filed his answer, alleging facts,’ which, as he claimed, showed that three other persons were at the November election elected county commissioners, and that the petitioners' were not, and further averring that two of those other persons on the 1st of January, 1891, duly qualified as anembers of the board of county commissioners, entered into possession and assumed the duties of such office, met on that day in the courthouse of the county as the board of County commissioners, and proceeded to transact the business of the county, and that they were jtill in possession of their offices of county commissioners. He admitted that he refused to recognize the petitioners as a board of county commissioners, and alleged as his reason therefor that they were not the legally elected commissioners, and had never been in possession of such offices. On the same day, January 15th, the matter came on to be heard on these pleadings, and a peremptory mandamus was ordered commanding the appellant that he record on the records of the county the proceedings of the petitioners as the board of county commissioners of the county, and that in all things he recognize them as the only lawful county commissioners of the county.”

After noticing other questions involved in the case, Justice Brewer continues:

“This brings us to the principal question in the case; and that is, the real.import of the proceedings was to try the title to office, that quo warranto is a plain, speedy, and adequate, as well as the recognized, remedy for trying the title to office, and that the familiar law in respect to mandamus, reinforced by statutory provisions in New Mexico, is that mandamus shall not issue in any case where there is a plain, speedy, and adequate remedy at law. On tliis the invalidity of the proceedings is .asserted. But the obvious reply is that this was not a proceeding to try the title of office. The direct purpose and object was to compel the defendant to discharge his duties as clerk, and to forbid him to assume to determine any contest between rival commissioners. It was enough in this case for the court to determine, and it must be assumed, that the evidence placed before it was sufficient to authorize an adjudication that these petitioners were commissioners de facto. As such, the clerk is bound to obey their commands and record their proceedings. It is true the pleadings disclose the existence of a contest between these petitioners and other parties, and it is true that the answer would tend to show that the others were the commissioners de facto j but that was a question of fact to be determined by the court hearing this application, and it, as must be assumed from the decision, found that these petitioners, rather than their contestants, were the commissioners de facto It was proper for it, then, to issue a mandamus to compel the defendant to recognize them as the commissioners of the county, and this irrespective of the question whether or not the petitioners were commissioners' de jure. No oue would for a moment contend that this adjudication could be pleaded as an estoppel in quo warranto proceedings between the several contestants. If that has not already been determined in a suit to which all the contestants are parties, it is still a matter open for judicial inquiry and determination.”

The foregoing case undoubtedly sustains the doctrine that, where two persons claiming title to the office of clerk of the district court present their credentials on which they base.their claim to the office to the judge of the district court, and each requests the judge to recognize him as such clerk, it is the duty of the judge to examine such credentials for the purpose of determining which one of the claimants holds the prima facie title to the office, and such examination does not constitute passing upon the title to the pirblic office.

Having reached the conclusion that the court has the power to examine all the facts presented by the parties for the purpose of determining which of the claimants has prima facie title to the office, we will briefly set out the claim of each as gleaned from the response and agreed statement of facts: The relator has a certificate signed by Porter Spaulding, who was appointed county clerk by the election ordinance passed by the constitutional convention. This certificate was based on a canvass of the vote cast, made by J. E. Wyand, J. W. Brady, and William Noel, who, all parties seem to concede, were the legal county commissioners of Muskogee county; and the canvass was made in pursuance'to a writ of madamus issued out of the United States Court of the Western Judicial District of the Indian Territory, at Muskogee. It also' appears, by the pleadings and agreed statement of facts, that after the canvass was made as above stated, to wit, on the 30th day of October, 1907, J. E. Wyand and William Noel, two of the county commissioners, entered an order recognizing Porter Spaulding as county clerk, and specifically ordering him as county clerk to issue certificates of election to the candidates receiving the highest number of votes. After this, on the same day, to wit, the 30th day of October, 1907, this board of county commissioners adjourned sine die. Carroll S. Bucher, according to the response and agreed statement of facts, holds a certificate of election signed by Prank R. Applegate, who claims to have been appointed by J. W. Brady and William Noel, two of the members of the board of county commissioners, after they had, as they stated, removed Porter Spaulding from office, for the reason that Spaulding refused to turn over to them or expose the returns for canvass. These commissioners claim to derive their power to remove Mr, Spaulding and appoint Mr. Applsegate from section 16 of the election ordinance, which reads as follows:

“In the event any county clerk shall fail or refuse to perform or discharge any of the duties aforesaid, or be disqualified, the county commissioners shall appoint some one to act as county clerk in the performance of such duties.”

The election certificate issued by Mr. Applegate is based upon a canvass “made by Irvin Blanchard, one of the county commissioners, and -Russell, holding appointment as county commissioner to fill an alleged vacancy, created by the alleged non-residence of William Noel.” This canvass seems to have been made on the 5th day of November, 1907.

The onfy irregularity apparent in the certificate of the relator is that it was signed by Mr. Spaulding after his alleged removal by the two commissioners above named. I am of the opinion that section 16 of the election ordinance does not give the coun•ty commissioners power summarily to. remove the county clerk for the reasons stated; but, as disclosed by the response and agreed statement of facts, as the same board of county commissioners, after the order of removal ivas made, and after the vote ivas canvassed, recognized Mr. Spaulding as county clerk, and specifically authorized and directed him to issue the certificates of election, and under this authorization and direction he did issue them, I do not deem it necessary to enter into a lengthy discussion of the powers of the commissioners to remove the county clerk. It is enough to say that, in my opinion, under the circumstances of this case, Mr. Spaulding, as county clerk, had authority to issue the certificate of election to the relator in this ease, and its possession by the relator is prima, facie evidence of his title to the office.

A careful scrutiny of the response and the agreed statement of facts fails to show the authority under which the alleged commissioners, who made the canvass on which Mr. Bucher’s certificate of election was presumably based, acted when they made their recount of the vote. It was not only judicially determined that the board that made the canvass ón which the relator’s certificate-of election was based was the legally constituted board of county commissioners, but all the parties recognized them as such. There cannot be two legally constituted boards at the same time, each authorized to canvass the returns and order certificates of election isued. From the response and statement of fa,ets there can be but one conclusion drawn on this point, and that is that the board that canvassed the returns on which the relator’s certificate of election is based was the legally constituted board. But, admitting that the board that canvassed the vote upon which Mr. Bucher’s certificate of election was based was the legally constituted board, still there appears to be no reason why there should be a recanvass of the vote. The old board made their canvass in pursuance to a writ of madamus directing them to do so. Unless the facts disclose circumstances jutifying another canvass, and in this case they do not, the canvass so made would be illegal and void.

From the facts before the court it must be found that the relator lias a prima facie title to the office; that the certificate of election of Carroll S. Bucher is palpably without legal warrant, and absolutely void.

“Title to public office, based upon mistakes of fact -or misconceptions of law, may impart a color or right which will bar the allowance of a mandamus; but palpable disregard of law' renders the action whereby an office is- seized merely colorable, and in a clear case will be brushed aside as affording no obstruction to the exercise of a plain legal duty.” (State of New Jersey v. Mayor, 52 N. J. Law, 332, 19 Atl. 780, 8 L. R. A. 697.)

This is also a rule at common law. Thus in Rex v. Bankes, 3 Burr. 1452, Lord Mansfield proposed, upon the argument, that affidavits be laid before him that he might determine whether ii was a doubtful election and fit to be tried upon an information h: the nature of a quo warranlo, or whether it was merely colorable, and clearly void; saying that in the former case the court might not grant a mandamus, while in tfie latter case they ought. This case falling fully within the rule sanctioned-by the common law, and well supported by decisions of courts of last resort, both state and federal, and this court having all the facts before it should render effective relief. This proceeding does not in any way affect the title to the office; but the person having' prima facie title to it is entitled ,to recognition as clerk of the district court by the respondent as judge of the court until his title is upset by a proper proceeding.

The relator is entitled to a peremptory writ of madamus commanding the respondent, as judge of the district court of Muskogee county, to recognize the relator as clerk of the district court of Muskogee'county and to permit said relator to record such proceedings of said court as it is the duty of the clerk to record, and to do and perforin such other services as are required by law of the clerk of the district court and to turn over to the relator such books, records, papers, files, seals, and other property belonging to said office as may be in his possession. It is so ordered.

All the Justices concur.