Smith v. Reid

244 N.W. 81, 60 S.D. 128, 1932 S.D. LEXIS 24

• Court: South Dakota Supreme Court
• Decided: August 30, 1932
• Docket: File No. 7408.
• Status: Published

Opinions

'CAMPBELL, P. J.

Appellant, Alex Reid, has resided continuously in the city of Sioux Falls in this state (and formerly in Dakota territory)»since 1883, excepting for one interval of temporary absence in 1885. He was elected to the city council in 1890, and thereafter re-elected and served continuously as a member of that body until 1901. Thereafter he was superintendent of streets of said city for a period of approximately eighteen years. Prior to April, 1923, the city of Sioux Falls had adopted the commission form of government, and in April, 1923, respondent, Smith, was elected city commissioner for the term of five years. In April, 1928, respondent, Smith, was a candidate for re-election, and appellant, Reid, among others, was a candidate against him, and ultimately defeated Smith for the office by approximately one hundred votes. Reid, being declared elected city commissioner as the result of the 1928 election, qualified and took possession of the office; Smith surrendering the same without contest, protest, or question. N Appellant, Reid, was born in Scotland in 1856 and came to the United States in 1880, and to Minnehaha county, Dak., in 1883.

On December 14, 1931, respondent, Smith, claiming recently to have ascertained that Reid had never become a citizen of the United States, made demand in writing upon Reid for the surrender of the office of city commissioner in the following form:

“To Alex Reid, Sioux Falls, South Dakota.

“As the duly elected and qualified commissioner of the city of Sioux Falls, South Dakota, and whose place on the City Commission you have usurped and now unlawfully hold because you are not a citizen of the United States, I herewith demand that you forthwith vacate said office and return it to me as its rightful and lawful incumbent.

“[Signed] Ellis O. Smith.

“Dated December 14, 1931.”

—it being the position of Smith that Reid, as an alien, was disqualified to hold the office and that he (Smith1) held over from his election in 1923.

Reid refusing' to surrender the office upon such demand, Smith instituted proceedings against him. by civil action in the nature of quo warranto in the circuit court of Minnehaha county, which resulted in findings, conclusions, and judgment against Reid and in favor of Smith. The conclusions of law of the learned trial court were as follows :

“i. That the petitioner, Ellis O. Smith, was duly elected City Commissioner of the City of Sioux Palls, Minnehaha County, South Dakota, the 24th day of April, 1923, and that he duly qualified for such office and entered upon the duties of the same and continued to hold the said office and discharge the duties thereof until the same were assumed by the said Alex Reid, as set out in the findings herein.

“2. That by reason of the fact that the said Alex Reid was never and is not now a citizen of the United States he was disqualified to hold the office of City Commissioner, and the said Ellis O. Smith was entitled to hold the said office until his successor was duly elected and qualified and he is now entitled to hold the said office.

“3. That the plaintiff, Ellis O. Smith, is entitled to judgment ousting the said Alex Reid from the said office of Commissioner of said City of Sioux Palls, and requiring the said Alex Reid to surrender said office, its powers, privileges, franchises and emoluments, to the said plaintiff and petitioner, Ellis O. Smith.”

The judgment, after the customary preliminary recitals, provided that it was “ordered, adjudged and decreed that the Petition for a Writ of Quo Warranto herein should be, and the same is hereby granted; and the said defendant and respondent Alex Reid is hereby ousted and excluded from the said office of Commissioner of the City of Sioux Falls, its powers, privileges, franchises and emoluments. And it is further ordered and adjudged that the plaintiff, Ellis O. Smith, is, and has been since the 24th day of April, 1923, entitled to the said office by virtue of the election alleged in the petition of Ellis O. Smith for a Writ of Quo Warranto, and entitled to the franchises, privileges and emoluments thereof; and that he have and recover of the defendant Alex Reid, the sum of $- as costs in this action, to he inserted by the Clerk of this Court.”

From that judgment, appellant, Reid, has appealed to this court. Prior to the appeal, Reid moved in the court below “that proceedings be stayed, pending presentation of motion for new trial and appeal, and that the court fix the amount of the undertaking under the provisions of section 3158, R. C. 1919.”

The statutory provision invoked 'by such application below reads as follows: “If the judgment appealed from direct the doing of any particular act or thing, and no express provision is made by the statute in regard to the undertaking to be given on appeal therefrom, the execution thereof shall not be stayed by the appeal therefrom unless an undertaking be entered into on the part of the appellant, in such sum as the court, or presiding judge thereof, shall direct, and by at least two sureties, to the effect that the appellant will pay all damages which the opposite party may have sustained by not doing the particular act or thing directed to be done by the judgment appealed from, and to such further effect as such court or judge shall in his discretion direct.” Section 3158, R. C. 1919.

The learned trial judge, entertaining the view that he had no power or authority to stay proceedings pending appeal, denied the application, and in that connection he said:

“The court is of the opinion that under the case of Fylpaa v. Brown County, 6 S. D. 634, 62 N. W. 962, and under In Re Mee, 45 S. D. 303, 187 N. W. 540, the judgment in this case would be self-executing, under the authority of the above named cases, and would not be one of the cases where our statutes contemplate a stay of execution could be granted, and that this court has no discretion in the matter. * * *

“I think I might say to you men that if the court felt that it had discretion to stay proceedings pending an appeal, it would grant a stay of proceedings.”

Thereafter appellant promptly perfected his appeal from the judgment and immediately moved in this court, upon order to show cause, for an order of this court “staying all proceedings in the above entitled matter pending the court’s determination upon the merits of the appeal hereinbefore perfected, and preserving the status quo therein until said appeal shall be finally determined.” Such application to this court was resisted by respondent, and the matter, having been submitted by oral argument of counsel and memoranda briefs, is now for our disposition.

Appellant invokes the action of this court in the premises upon two theories:

First, appellant maintains that the learned trial judge should have fixed the amount of undertaking to stay proceedings pending appeal pursuant to section 3158, R. C. 1919, and, having refused so to do in the belief (mistaken, as appellant contends) that he had no such power, this court should act in the matter pursuant to section 3163, R. C. 1919, reading in part as follows: “ * * * When the court, or the judge thereof, from which the appeal is taken or desired to be taken, shall neglect or refuse to make any order or direction, not wholly discretionary, necessary to enable the appellant to stay proceedings upon an appeal, the supreme court, or one of the judges thereof, shall make such order or direction.”

Secondly, and independently of his first contention, appellant urges that this court, in aid of its appellate jurisdiction, has an inherent power in all cases appealed to it to stay proceedings below and in its discretion to make any and all orders or issue any writs necessary to preserve the status quo of the parties pending the appeal, and that the circumstances are such that this court, as a matter of discretion, ought to malee such order in this case.

If either position of appellant is well taken he is entitled to prevail on the present motion, and any determination of the validity of the other position becomes unnecessary. Inasmuch as we are of the opinion that appellant is right in his second contention, the present application is ruled by that view, and we need not undertake to determine in this case the rather serious question of whether or not the court erred in its pronouncement as to a “self-executing judgment” in the Fylpaa Case.

Thus specifically refraining from deciding the first point raised by appellant, we turn to the consideration of his second contention. We believe that appellant is right in his position that this court has an inherent power, in furtherance of the effective exercise of its appellate jurisdiction, to preserve the status quo of parties litigant pending appeal. Our statutes with reference to stay pending appeal relate entirely to the power and authority of the trial court. Over and above that power, there is, we think, the inherent discretionary power of the appellate court, above referred to, which power the Legislature has never attempted to limit, if indeed it could be subject to legislative impairment. This court specifically announced the existence of that power in Gamet v. Allender (1926) 50 S. D. 150, 208 N. W. 782. In Mee v. Hirning (1922) 45 S. D. 303, 187 N. W. 540, the court tacitly assumed the existence of such power without affirmatively declaring it, but upon review of the facts held that it ought not there to be exercised. In Brookfield v. McClenahan (1930) 57 S. D. 520, 234 N. W. 19, we again assumed, without affirmatively deciding, the existence of the power, but held that we would not exercise it in a case where supersedeas might have been fixed by the circuit court but no application therefor had been made below. Not only has the Legislature of this state made no attempt to limit the inherent power of this court to issue such writs and orders as circumstances may require in aid of its appellate jurisdiction, but such power has been specifically recognized by section 2105, R. C. 1919, reading as follows: “Its original jurisdiction extends to all writs which by law may issue from/ this court, and to all writs necessary to the exercise of its appellate jurisdiction.”

The existence of such power in an appellate court seems quite generally recognized upon the authorities.

“An appellate court has inherent power to order a stay of proceedings in the trial court touching any matter of appeal upon such terms as to security, etc., as the appellate court may prescribe; this power is sometimes conferred, recognized and regulated by statute. This power may be exercised in all cases when necessary to preserve the; status quo pending appeal, so that the rights involved in the appeal may not be lost or reduced by reason of an intervening execution of the judgment, and in cases not expressly provided for by statute.” 24 Standard Encyc., Procedure, p. 484.

“The injunction being dissolved, the appeal cannot revive the process or give it force. It cannot be revived but by a new exercise of judicial power. Hoyt v. Gelston, 13 Johns. 140; Wood v. Dwight, 7 Johns. Ch. 295; Hart [& Hoyt] v. Mayor of Albany, 3 Paige, 381. It is, in effect, the granting of a new injunction. It is said that this is an original exercise of judicial power; and unquestionably it is so. It is thereupon objected that this is a mere appellate tribunal, and cannot exercise such power. The consequence does not follow. It may not exercise original power in acquiring jurisdiction over the cause. But that jurisdiction once regularly obtained, this court may exercise original jurisdiction over the parties, especially when the proceeding" is in rem, and the object of the order is to maintain unchanged, as far as practicable, the status or condition of the subject matter of the controversy during the pendency of the suit. It is on the same principle upon which a court oí common law, in an action of ejectment or dower will make an order upon the party in possession, restraining the commission of waste. And a Court of Equity, prior to the hearing or argument, will, upon the same principle, grant a temporary injunction until the case can be heard. It is an inherent power in all superior tribunals, essential to the attainment of the object of litigation and the ends of justice. I am of the opinion, therefore, that this court must of necessity have the power to- make the order applied for.” Doughty v. Somerville & Easton R. R. Co., 3 Hal. Ch. (7 N. J. Eq.) 629, 51 Am. Dec. 267.

See, also, 3 C. J., “Appeal and Error,” §§ 1408-1410; Union, etc., Co. v. Felsenthal Land & Townsite, 84 Ark. 494, 106 S. W. 676; Central, etc., Bank v. Guthrie Mountain Portland Cement Co., 83 Kan. 630, 112 P. 332; Home Fire Ins. Co. v. Dutcher, 48 Neb. 755, 67 N.W. 766; Carson v. Jansen, 65 Neb. 423, 91 N.W. 398; Hart v. Albany, 3 Paige Ch. 381, 3 D. Ed. 197; Fleischmann v. Mengis (Sup.) 118 N.Y.S. 671; Ex parte Epley, 10 Okl. 631, 64 P. 18; Divesly v. Krebs Hop Co., 57 Or. 352, 97 P. 718, 107 P. 460, 112 P. 1; State ex rel Barnard v. Board of Education, 19 Wash. 8, 52 P. 317, 40 L. R. A. 317, 67 Am. St. Rep. 706; Northwestern Improvement Co. v. McNeil, 98 Wash. 1, 167 P. 115; Levy v. Goldberg, 40 Wis. 308; Janesville v. Janesville Water Co., 89 Wis. 159, 61 N. W. 770; Farmers’ State Bank v. Haun, 29 Wyo. 322, 213 P. 361; Rogers v. Santa Cruz County, 158 Cal. 467, 111 P. 357.

The status quo of the parties when the present appeal was taken was this: There was a judgment declaring respondent, Smith, entitled to the office. Appellant, Reid, was still in actual possession of the office, as at least a de facto officer, and exercising the functions thereof. Regardless of any technical questions of stay of proceedings, or self-executing judgment, we think that this court has full power and authority pending this appeal to keep that situation as it is. Proceedings in the nature of quo warranto as here undertaken constitute a civil action. Section 2781, R. C. 1919 (as amended by Laws 1919, c. 289, §1). There is not as yet any final judgment between the parties, and the action is still pending, and since the taking of the appeal it is pending in this court.

“An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment be sooner satisfied.” .Section 2101, R. C. 19x9. See, also, Kirby v. Circuit Court of McCook County (1897) 10 S. L. 38, 71 N. W. 140.

Under those circumstances, the action being now pending in this court, and the court having jurisdiction of the subject-matter and of the parties, we are firmly convinced that this court has ample authority to say to the respondent, Smith: Leave matters in their present condition pending this appeal. Hold the judgment which you have (and which is declaratory of your legal rights) subject to the affirmance or reversal of this court when it comes up for consideration on the merits. Meantime, defer the actual exercise of your legal right as now declared by the court ¡below, from which declaration an appeal has been duly perfected. Do not take any steps, by invoking the aid of any court or tribunal in any manner or form of procedure whatsoever, or otherwise, to render your judgment more effective or more operative as between yourself and Reid than it presently is, and 'do not take any steps or proceedings of any kind or nature in an effort, pursuant to that judgment, to put Reid out of the office of which he now has actual physical possession, or to put yourself therein.

Appellant, Reid, has resided in Sioux Falls since 1883. He appears to have been active in affairs, and for much of the1 time since 1890 has held elective public office or appointive position in that city. He appears to have exercised the rights and privileges of American citizenship unchallenged in the same community for more than forty-seven years most openly and notoriously. Fie was the choice of a majority of the electors for the office, the functions of which he now performs. No question as to his qualifications was raised at the time of the election, and respondent, Smith, surrendered the office to him after the election. The question of lack of citizenship was not raised until Reid had served approximately three years and eight months of a five-year term, and, when raised, it was based and predicated chiefly upon the records, or lack of records, of the office of the clerk of courts in Minnehaha county, S. D., which have been as open to public examination for many, many years as they were in December, 1931. Each of these parties claims to be entitled to the office which Reid now in fact occupies and exercises. Both cannot occupy the office and exercise its functions pending the appeal and the ultimate decision of the controversy between them. The legal right of the parties will not be finally adjudicated until the determination of the appeal. If respondent, Smith, now entered upon the exercise of the office and the judgment appealed from, should be reversed, appellant, Reid, would be reinstated, and there would have been within a short period of time two changes in the administration of the office, which manifestly would not be for the best interest of the public. On the other hand, if Reid continues to exercise the functions of the office pending the appeal his acts will be good as to. third persons, at least as a de facto officer. If the judgment appealed from should be reversed, there will be no change in the office. If the judgment appealed from should be affirmed, Smith will have been prevented for a brief additional period from exercising a legal right which he himself neglected to ascertain and assert during a period! of nearly four years. His legal right to the office in the event of affirmance will date from the judgment of the court below, and his principal damage cognizable at law will be the emoluments of the office during the period that the actual exercise of his legal right was deferred after the determination thereof by the court below. His rights in that regard will not be affected by the stay of proceeding, and can be fully protected by conditioning the stay upon the giving of an adequate undertaking by appellant, Reid.

Under all the circumstances, considering both the public interest and the position of the parties litigant, we share the view expressed by the learned trial judge that this, is .a case where proceedings ought to be stayed and the actual operative effect of the judgment appealed from deferred pending the appeal. We are therefore of the opinion that; this is a proper case for exercising the inherent discretionary power of this court to preserve the status quo pending the determination of the appeal, and the order of this court will be that all proceedings of any kind or character upon the judgment below be stayed pending the determination of this appeal (or the further order of this court), and that respondent, Smith, refrain from interfering with or in any manner disturbing the present situation as between the parties to said judgment pending the determination of said appeal (or until the further order of this court). Such order shall not continue in force for more than ten days after entry thereof unless appellant within said ten-day period shall file with the clerk of this court an undertaking with sureties approved by the clerk of the circuit court of Minnehaha county in the sum of $3,000, conditioned for the payment of any damages which respondent may suffer by reason of such stay, in the event the judgment appealed from is ultimately affirmed by this court. If such undertaking is furnished, then the stay order shall automatically (and without other or further order) be and continue in full force and effect pending the appeal (or the further order of this court).

FORREY, WARREN, and RUDORPH, JJ., concur.