The respondent, Ellis O. Smith, commenced this proceeding in circuit court against the appellant, Alex Reid, in December, 1931, for the purpose of determining the right to the office of city commissioner of the city of Sioux Falls. The proceeding is in the nature of quo warranto. The only fact dispute concerns the citizenship of the appellant. It is undisputed
that on the 24th day of April, 1923, the respondent, Smith, was qualified to hold the office of commissioner of the city of Sioux Falls, and on that date he was elected to that office, and thereafter duly qualified and pursued the duties of the office for a period of five years, the term for which he was elected. At the regular city election held in Sioux Falls on the 24th day of April, 1928, the respondent, Smith, was a candidate to succeed himself, and was opposed in that election by the appellant, Reid. Reid received the highest number of votes for the office, was declared elected, and thereafter qualified and assumed the duties of the office. Since the 1928 election Reid has been the acting commissioner. Smith brought this action in his own name claiming a "special interest in the action" under the provisions of section 2784, R.C. 1919, as amended by chapter 289, § 4, Laws of 1919; Smith claiming that, at the time of the 1928 election, Reid was not a citizen of the United States or of the state of South Dakota, and that, by virtue of his (Smith's) election in 1923, he was entitled to the office as a hold-over under the provisions of section 7035, R.C. 1919. The trial court determined, as a matter of fact, that Reid was not a citizen at the time of the 1928 election, that Smith had no knowledge of this fact until shortly prior to the commencement of the action, and determined that Reid was not entitled to hold the office of city commissioner of Sioux Falls. By its judgment the court ousted Reid from that office. The court further determined that Smith had never abandoned the office here in dispute, and that he (Smith) was entitled to the office by virtue of the 1923 election. Reid has appealed from the judgment and order denying his motion for a new trial.
[1, 2] To maintain the action, Smith, as plaintiff, must show that he has a special interest; namely, a right to the office. Gibbs v. Bergh, 51 S.D. 432, 214 N.W. 838, 841. The appellant contends, first, that Smith has no right to the office, for the reason that the term of office of city commissioner is limited to five years, and the officer does not hold over until his successor is elected. We believe section 7035, R.C. 1919, is a complete answer to this contention of appellant. The office of city commissioner is a public office within the meaning of that section of our Code. The contention is also made that said section 7035 was no part of our
law prior to the adoption of the 1919 Code, and that it was no part of the legislative intent, in enacting the South Dakota Revised Code of 1919, to make said section 7035 applicable to the office of city commissioner. With this contention we do not agree. The said section is unambiguous; it applies to "every lawful incumbent of any public office, with a definite term." Conceding the rule as contended by the appellant, viz., that changes in revision will not be considered as altering the law, unless it is clear that such was the intention, we inquire, what language could more definitely express an intention to include, within the meaning of this section, every public office to which is atatched a definite term, than the language just above quoted? The Code commission was created by chapter 156, Laws of 1917, with power "to eliminate all statutes that are inoperative or that have been repealed, to incorporate all amendments and include all new statutes and to add to or take from such laws and statutes whatever may be necessary to make a perfect, complete and consistent Code of Laws." Section 2, Chapter 300, Laws of 1919, enacted the South Dakota Revised Code of 1919 as the laws of this state.
[3-8] The appellant next contends that, prior to the commencement of this action, Smith had abandoned the office, and therefore had no right to the same or "special interest in the action." In all cases abandonment is a question of intention. True, the intention may be inferred from acts, but mere nonuser does not amount to abandonment, nor is mere lapse of time alone sufficient to establish abandonment. Edgemont Implement Co. v. Tubbs Sheep Co., 22 S.D. 142, 115 N.W. 1130. The trial court found "that at the time the said Alex Reid purported to enter upon his duties as city commissioner of the said city of Sioux Falls, the said Ellis O. Smith had no knowledge that the said Alex Reid was not a citizen of the United States or of the state of South Dakota, and that as soon as Ellis O. Smith learned that the said Alex Reid was not a citizen of the United States, he demanded without delay of the said Alex Reid that he surrender the said office and its duties to him, and that upon the refusal of the said Alex Reid to surrender the said office he immediately instituted these proceedings." This finding is challenged only as follows: "For the reason that the plaintiff would be presumed to
have knowledge of the public records, and said plaintiff had as much knowledge of the status of Alex Reid by reason of said notice conveyed by said public records at the time of the election of said Alex Reid as he had at the time of the institution of these proceedings."
Conceding that the plaintiff was charged with knowledge of what the public records of Minnehaha county showed or failed to show, certainly he was not charged with knowledge that no record of any court of record in this land showed the naturalization of Reid as a citizen. Reid, although a resident of Minnehaha county for many years, might have been naturalized in California or New York. The simple fact that the records of Minnehaha county failed to show that Reid was a citizen even when coupled with the knowledge of Reid's long residence in Minnehaha county could impart no notice that Reid was in fact not a citizen. The above finding of the trial court being challenged only in the particular above set out, and this court being convinced that the contention of appellant, viz., that the lack of a record showing naturalization in a county where a person has long resided imparts constructive notice that such person is not a citizen (if in fact he is not a citizen), is without merit, we must therefore accept the finding of the trial court and treat as established the fact that at the time Smith surrendered the office to Reid he had no knowledge that Reid was not a citizen. This court in the case of Gibbs v. Bergh, supra, which also was a proceeding in the nature of quo warranto contesting an election in Sioux Falls, announced a rule, as follows: "But before he [the plaintiff and one asserting his right to the office] can be charged with a waiver of his rights he must have full knowledge of his rights and of the facts which will enable him to take effectual action to prevent infringement of such rights. * * *"
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The respondent, Ellis O. Smith, commenced this proceeding in circuit court against the appellant, Alex Reid, in December, 1931, for the purpose of determining the right to the office of city commissioner of the city of Sioux Falls. The proceeding is in the nature of quo warranto. The only fact dispute concerns the citizenship of the appellant. It is undisputed
that on the 24th day of April, 1923, the respondent, Smith, was qualified to hold the office of commissioner of the city of Sioux Falls, and on that date he was elected to that office, and thereafter duly qualified and pursued the duties of the office for a period of five years, the term for which he was elected. At the regular city election held in Sioux Falls on the 24th day of April, 1928, the respondent, Smith, was a candidate to succeed himself, and was opposed in that election by the appellant, Reid. Reid received the highest number of votes for the office, was declared elected, and thereafter qualified and assumed the duties of the office. Since the 1928 election Reid has been the acting commissioner. Smith brought this action in his own name claiming a "special interest in the action" under the provisions of section 2784, R.C. 1919, as amended by chapter 289, § 4, Laws of 1919; Smith claiming that, at the time of the 1928 election, Reid was not a citizen of the United States or of the state of South Dakota, and that, by virtue of his (Smith's) election in 1923, he was entitled to the office as a hold-over under the provisions of section 7035, R.C. 1919. The trial court determined, as a matter of fact, that Reid was not a citizen at the time of the 1928 election, that Smith had no knowledge of this fact until shortly prior to the commencement of the action, and determined that Reid was not entitled to hold the office of city commissioner of Sioux Falls. By its judgment the court ousted Reid from that office. The court further determined that Smith had never abandoned the office here in dispute, and that he (Smith) was entitled to the office by virtue of the 1923 election. Reid has appealed from the judgment and order denying his motion for a new trial.
[1, 2] To maintain the action, Smith, as plaintiff, must show that he has a special interest; namely, a right to the office. Gibbs v. Bergh, 51 S.D. 432, 214 N.W. 838, 841. The appellant contends, first, that Smith has no right to the office, for the reason that the term of office of city commissioner is limited to five years, and the officer does not hold over until his successor is elected. We believe section 7035, R.C. 1919, is a complete answer to this contention of appellant. The office of city commissioner is a public office within the meaning of that section of our Code. The contention is also made that said section 7035 was no part of our
law prior to the adoption of the 1919 Code, and that it was no part of the legislative intent, in enacting the South Dakota Revised Code of 1919, to make said section 7035 applicable to the office of city commissioner. With this contention we do not agree. The said section is unambiguous; it applies to "every lawful incumbent of any public office, with a definite term." Conceding the rule as contended by the appellant, viz., that changes in revision will not be considered as altering the law, unless it is clear that such was the intention, we inquire, what language could more definitely express an intention to include, within the meaning of this section, every public office to which is atatched a definite term, than the language just above quoted? The Code commission was created by chapter 156, Laws of 1917, with power "to eliminate all statutes that are inoperative or that have been repealed, to incorporate all amendments and include all new statutes and to add to or take from such laws and statutes whatever may be necessary to make a perfect, complete and consistent Code of Laws." Section 2, Chapter 300, Laws of 1919, enacted the South Dakota Revised Code of 1919 as the laws of this state.
[3-8] The appellant next contends that, prior to the commencement of this action, Smith had abandoned the office, and therefore had no right to the same or "special interest in the action." In all cases abandonment is a question of intention. True, the intention may be inferred from acts, but mere nonuser does not amount to abandonment, nor is mere lapse of time alone sufficient to establish abandonment. Edgemont Implement Co. v. Tubbs Sheep Co., 22 S.D. 142, 115 N.W. 1130. The trial court found "that at the time the said Alex Reid purported to enter upon his duties as city commissioner of the said city of Sioux Falls, the said Ellis O. Smith had no knowledge that the said Alex Reid was not a citizen of the United States or of the state of South Dakota, and that as soon as Ellis O. Smith learned that the said Alex Reid was not a citizen of the United States, he demanded without delay of the said Alex Reid that he surrender the said office and its duties to him, and that upon the refusal of the said Alex Reid to surrender the said office he immediately instituted these proceedings." This finding is challenged only as follows: "For the reason that the plaintiff would be presumed to
have knowledge of the public records, and said plaintiff had as much knowledge of the status of Alex Reid by reason of said notice conveyed by said public records at the time of the election of said Alex Reid as he had at the time of the institution of these proceedings."
Conceding that the plaintiff was charged with knowledge of what the public records of Minnehaha county showed or failed to show, certainly he was not charged with knowledge that no record of any court of record in this land showed the naturalization of Reid as a citizen. Reid, although a resident of Minnehaha county for many years, might have been naturalized in California or New York. The simple fact that the records of Minnehaha county failed to show that Reid was a citizen even when coupled with the knowledge of Reid's long residence in Minnehaha county could impart no notice that Reid was in fact not a citizen. The above finding of the trial court being challenged only in the particular above set out, and this court being convinced that the contention of appellant, viz., that the lack of a record showing naturalization in a county where a person has long resided imparts constructive notice that such person is not a citizen (if in fact he is not a citizen), is without merit, we must therefore accept the finding of the trial court and treat as established the fact that at the time Smith surrendered the office to Reid he had no knowledge that Reid was not a citizen. This court in the case of Gibbs v. Bergh, supra, which also was a proceeding in the nature of quo warranto contesting an election in Sioux Falls, announced a rule, as follows: "But before he [the plaintiff and one asserting his right to the office] can be charged with a waiver of his rights he must have full knowledge of his rights and of the facts which will enable him to take effectual action to prevent infringement of such rights. * * *"
In the case of Turnipseed v. Hudson, 50 Miss. 429, 19 Am. Rep. 15, cited with approval in the Gibbs-Bergh Case, the plaintiff voluntarily surrendered the office to the defendant after signing an agreement to abide the results of a certain primary election, yet the court held there was no abandonment. As in that case, so is the record here replete with a refutation that the plaintiff surrendered the office with a determination to vacate it because he did not wish to hold it. Smith surrendered the office to Reid in the
honest belief (in which he now contends he was mistaken) that Reid was a citizen of the United States; immediately upon satisfying himself that he was mistaken in this belief, he openly asserted his rights to the office, and without delay commenced this proceeding. We do not believe it can be said that Smith "had full knowledge of his rights and the facts which will (would) enable him to take effectual action to prevent infringement of such rights." Reid has lived in Sioux Falls since 1886, and during that time has held public office and generally exercised the privileges of a citizen. Reid was successful in this last election as he had been in others in the city. Smith acted naturally under these circumstances, and voluntarily surrendered the office, and refrained from asserting any right thereto until such time as he learned (we know not how) that there was some question regarding the citizenship of Reid, when he immediately asserted his right to the office. The trial court did not err in concluding that Smith had not abandoned the office.
We agree with the views of CAMPBELL, P.J., expressed in his concurring opinion filed herein. This disposes of the question of Reid's citizenship, so far as this case is concerned, and precludes us from reviewing the determination of this question as made by the trial court.