Opinion
(February Term, 1897.)
Mandamus — Quo Warranto — Ejection from Office — Restoration — Clear Legal Title to Office.
Where a plaintiff sues for an office occupied by another, his remedy is an action in the nature of quo warranto. If he sues to be restored to an unoccupied office, his remedy is an action for a mandamus, and he must show that he has a present clear legal right to the thing claimed, and that it is the duty of the defendant to render it to him. (CLARK and MONTGOMERY, JJ., dissenting.)
MANDAMUS, tried before Allen, J., at January Term, 1897, of (238) GRANVILLE, on an agreed statement of facts which are summarized in the opinion of the Court. His Honor adjudged as follows: "That the plaintiffs, W. T. Lyon and G. B. Royster, are entitled to be forthwith reinstated and restored to their said office as Commissioners, and the said defendants are ordered and directed forthwith, upon the service of a copy of this decree upon them by the sheriff of Granville County, which copy shall be made and prepared by the Clerk of this court, to reinstate, reinduct, and restore said W. T. Lyon and G. B. Royster to their said offices, and likewise permit said plaintiffs to be and act in all respects as Commissioners of said county, and as such to participate in the meetings of said board during the time specified in the order of Judge Graham, appointing to said office heretofore referred to. And it is ordered, considered and adjudged that plaintiffs recover of the defendants the costs of this action in this behalf incurred, to be taxed by the Clerk, and that a peremptory writ of mandamus issue commanding that, forthwith and without excuse or delay, the defendants above named comply with the terms of this judgment and decree, and meanwhile and until said judgment and decree is fully complied with, these defendants, and each of them, are enjoined and restrained as heretofore." From this judgment defendants appealed.
The cause had previously been heard before Graham, J., at chambers, in Oxford, on 28 December, 1896, on application for mandamus and injunction, and the answer of the defendants having raised certain issues, they were transferred to the January Term for trial, but in the meanwhile defendants were restrained from paying out any money or incurring any debts or accepting official bonds except upon the concurrence of as many as four of the board. From so much of such order as so restrained the defendants they appealed, and from the order transferring the cause to the Superior Court in term the plaintiffs (239) appealed.
Messrs. Winston, Fuller Biggs for plaintiff.
Messrs. Edwards Royster and Mr. J. B. Batchelor for defendants.
(Syllabus by FAIRCLOTH, C. J.)
The plaintiffs instituted this action alleging that they were duly and legally appointed Commissioners of Granville County by the resident Judge of the Fifth Judicial District, by virtue of the power vested in him by Laws 1895, chap. 135, praying for a mandamus compelling the defendants to restore them to their said office and to permit them to participate in all respects in the deliberations of the Board of Commissioners for the county. The defendants deny the plaintiff's right to be inducted into office on the ground that the Judge had no authority to make the appointment, and that the same was void in law. Sec. 5 of the said Act is in these words:
"That whenever as many as five electors of the county make affidavit before the Clerk of the Superior Court, at any time after the election of the County Commissioners, that they verily believe that the business of the county, if left entirely in the hands of the three Commissioners elected by the people, will be improperly managed, that then upon the petition of two hundred electors of said county, one-half of whom shall be freeholders and so certified by the Clerk of the Superior Court, made to the Judge of the district, or Judge presiding therein, it shall be the duty of the said Judge to appoint two honest and discreet citizens of said county, who shall be of a political party different from that of a majority of the Board of Commissioners, who shall, from their (240) appointment and qualification, by taking the oath required for County Commissioners, be members of said Board of Commissioners in every respect," etc.
Facts: From the confused proceedings, it appears that five electors appeared before the Clerk and offered to file a written affidavit, as required by the said Act, with a list of petitioners. The Clerk declined to receive the papers, as not being in proper form. The affiants made an affidavit before the Judge at chambers, certifying to the Clerk's refusal. Notice was issued by the Judge to the Clerk to show cause why he did not accept the oath and affidavit offered. The Clerk certified that two hundred electors had not signed the petition, and that among those who had signed there were not one hundred freeholders. The Judge allowed the petitioners to amend the petition with other names to supply those from two townships from which the books were not in the office. The Judge then ordered the tax books and registration books to be brought into Court, and upon examination of the books and from oral testimony, "the Court doth find as a fact that more than two hundred electors of said county, of whom more than one hundred are freeholders in said county, have signed said petition." The Judge then ordered the Clerk to "forthwith" certify to said one hundred persons being freeholders and return said petition and all other papers in the case to said Court "at once." The Clerk refused to so certify. The Judge then appointed the plaintiffs Commissioners of Granville County "with all the powers and duties of a Commissioner of said county."
The plaintiffs and defendants met together, organized and transacted some business for an hour or two, when defendants, being of opinion that the appointment of the plaintiffs was invalid and void, declined to recognize them as members of the board, and to allow them to participate in their meetings, and this action is brought to reinstate the (241) plaintiffs and have their right declared by the Court.
The written statement, from which the above facts are extracted, was offered in evidence on the trial, but excluded by his Honor, and the defendants excepted and appealed.
The identical facts, more in detail, will be found in the case of Waller v. Sikes, ante, 231. These facts were offered for the purpose of showing that the District Judge had no jurisdiction of the matter, when he appointed the plaintiffs as above recited and that his action was void. No summons had issued and there was no action pending in which said appointment was made.
We will not indulge in many remarks on quo warranto and mandamus, as we think that an action for mandamus is the proper proceeding in this case. In England it was a prerogative writ, when no other remedy could be had, and had many refinements, issuing only at the pleasure of the Court. By statute 9 Anne, chap. 20, the remedy was made one of right, and the general rules of pleading and practice were made applicable to mandamus as in other personal actions. At common law the return to a writ of mandamus could not be traversed, and if the matters set forth were sufficient in law, the defendant had judgment to go without day. If the return was false, the remedy of the person aggrieved thereby was an action on the case for making a false return; and if the plaintiff proved the matters of fact false he recovered damages and costs. By 9 Anne, chap. 20, in certain cases all or any of the material facts set forth in the return may be traversed. Our statute, 1836, Chap. 97, Sec. 5, The Code, sec. 623, extends this provision to all cases, and upon a traverse of any of the material facts "the summons, pleadings and practice shall be the same as is prescribed for civil actions," and if an issue of fact is raised by the pleadings, it must be decided by a jury. The Code, sec. 623; Tucker v. Justices, 46 N.C. 459. (242)
This prerogative writ has never obtained in our State. Scire facias and quo warranto are abolished, and civil action substituted (The Code, sec. 603), and mandamus is regulated as an action by The Code, sec. 622. Remedies are now by action and special proceedings (The Code, sec. 125), and civil actions shall be commenced by issuing a summons. The Code, sec. 199.
When a plaintiff sues for an office occupied by another, quo warranto is the proper remedy, as in Cloud v. Wilson, 72 N.C. 155, but when the office is vacant by reason of a motion, the remedy is mandamus, as in Doyle v. Raleigh, 89 N.C. 133, and this distinction reconciles the decisions.
The plaintiffs' complaint alleges that they were "duly and legally appointed Commissioners" by the resident Judge, and this is denied by the answer. The burden of proof was on the plaintiffs, which they failed to make, and now rely upon their prima facie title by reason of their appointment by the Judge of the district, and the fact that they had once been in the office and afterwards excluded. The defendants offered proof of the invalidity of the plaintiffs' title, because the Judge who appointed had no jurisdiction of the matter, i. e., it was coram non judice. It is true that the acts of de facto officers are conclusive on third parties, but we fail to see how such de facto acts tend in any degree to show jurisdiction in the appointing power or the legality of the plaintiffs' title. When the Clerk refused to certify, we think the remedy of any one of the petitioners or affiants was an action for a mandamus to show cause, etc., but the Judge assumed jurisdiction, heard evidence, found facts, when there was no one to contest such findings, and appointed the (243) plaintiffs Commissioners of the county. In order to confer jurisdiction, under Sec. 5 of the said Act, it was necessary:
1. That the affidavit be filed with the Clerk with two hundred petitioners, one-half freeholders.
2. That the Clerk shall have certified these facts to the Judge in the district.
The power of the Judge then was to appoint, and nothing more. His Honor finds as a fact that the plaintiffs failed to take an oath to support the Constitution of the State and United States as required by law. We then have the question, Can the Court order that the plaintiffs be inducted or restored to the office of Commissioner without showing a legal right to it? Mandamus by the statute of Anne, chap. 20 is an effectual remedy; First, for refusal of admission where a person is entitled to an office, and Secondly, for a wrongful removal where a person is legally possessed. 3 Bl. Com. 264. "The prosecutor (plaintiffs') must be clothed with a clear legal and equitable right to something which is proper by the subject of the writ, as a legal right by virtue of an Act of Parliament." Tapping on Mandamus, pp. 10, 12, 28, 321. "Mandamus is a proceeding to compel a defendant to perform a duty which is owing to the plaintiff, and can be maintained only on the ground that the relator has a present clear legal right to the thing claimed, and that it is the duty of the defendants to render it to him." Brown v. Turner, 70 N.C. 93. High, in his Extraordinary Legal Remedies, after discussing in detail quo warranto, a motion, induction, de facto, restoration and mandamus, concludes under the latter head, sec. 70: "It is to be borne in mind that the rule as above stated is applied only in favor of those who are clearly entitled de jure to the office from which they have been removed. And when the writ is sought to compel the restoration of one claiming the right to the office, it is not sufficient for him to (244) show that he is the officer de facto, but it is also incumbent upon him to show a clear legal right, and, failing in this, he is not entitled to the peremptory writ." 1 Chit. Gen. Pr., 791; Worthy v. Barrett, 63 N.C. 199. The same doctrine is asserted by the same author in the same book at secs. 9, 10, 53. The same principle is declared in Justices v. Harcourt, 4 B. Monroe, 501, and in Clark v. Trenton, 49 N.J.L. Rep., and others. In the latter it is held that "the claim of mandamus will not issue to seat a person in an office, even on proof of a prima facie title thereto, if it appears that his title is such that if seated he must be ousted from his seat upon a contest." In State v. Justices, 24 N.C. 430, Gaston J., says: "Now, we hold it to be elementary doctrine, in support of which it is needless to refer to any of the numerous adjudged cases that acknowledge and sustain it, that a writ of mandamus will not be granted to a relator for his relief, except where he has a specific legal right and has no other specific remedy to enforce it." Affirmed in Tucker v. Justices, 46 N.C. 451.
The principle of these authorities seems reasonable. It is in harmony with that which governs in all other personal actions. It seems extraordinary that a Court should feel warranted in commanding the defendants to restore a person to office from which they have removed him for what appeared to them to be a sufficient cause, when the very next day they might exercise the same right on precisely the same grounds. Why restore and drive the parties to the cost and delay of another action to determine the identical issue raised by the pleadings in this action? Suppose the office was now occupied by an intruder, or otherwise, making quo warranto the proper action; in that event it is conceded that the relator would be held to strict proof of a clear title. Does (245) that circumstance change the quantum of proof because the action is called by a different name, when the object and facts are identically the same in each? If so, it must be an exception to the rule in all other personal actions.
Under our system, at this day, it appears to us that the better practice is to try the issue raised by the pleadings in the present action and save the delay, trouble and expense of another action.
Reversed.