Opinion
No. 37934.
May 28, 1951. Revised opinion on suggestion of error. October 8, 1951 (54 So.2d 276).
1. Quo warranto — school trustee — public officers.
A school trustee is a public officer, and, under the statute, quo warranto will lie to test the right of a public officer to such office. Sec. 1120 Code 1942.
2. Elections — quo warranto — school trustee.
Where a named person has been formally certified as having been elected a school trustee and a commission as such has been issued to him by the county superintendent of education and no disqualification is alleged against him, the complaint that he was elected in a fraudulent manner by the aid of disqualified voters is not to be heard in quo warranto but the exclusive remedy in such a case is under the statute providing for the contest of the election of any person returned as elected to any office within any county. Sec. 3287 Code 1942.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Pearl River County; J.C. SHIVERS, Judge.
R.G. Livingston and Tate Thigpen, for appellant.
As it is inconceivable that the lower court meant to hold there is no relief for the public in the case of a usurper in public office such as the appellee here, we must assume that, since the court was of the opinion that it had no jurisdiction over the petition filed by appellant, that the court was also of the opinion that another means of relief was open to appellant.
This, said the court, is the remedy granted in Section 3287 Code 1942. This remedy is exclusively for candidates in the election contested and is not available to the appellant as an individual or in his official capacity on behalf of the public as a whole, but is available only to the defeated candidate. If this is to be regarded as the only relief available in cases such as the one at hand, then the state and the public in general have no redress. In many instances the defeated candidate will not file an election contest for the common reason that he is afraid the average man will feel that he only did so because he is angry at having been beaten, that it is the common expression of "sour grapes". In such instances where, as here, there has been a void election, and an individual is unlawfully usurping the duties and functions of a public office charged with trust, under the contention of the defendant and apparently of the lower court, the State and individual citizens, the public in general, would be deprived of any methed of removing the individual so unlawfully holding the said office under some pretense or color of authority gained through a void election. The Court, in the case of Jones v. Election Commissioners, 187 Miss. 636, 193 So. 3, held that the aforesaid statute limits the right to contest in the person or persons who were candidates in the election, and does not give a taxpayer or a qualified elector or a patron of the district the right to contest the election of an officer.
While the legislature may, in a proper case, provide a remedy that will exclude the jurisdiction of the courts in quo warranto, "unless it appears with unequivocal certainty that such was the intention, the jurisdiction will remain. Ordinarily a statutory proceeding for certain relief is not exclusive of quo warranto for similar relief, unless the legislative intent to that effect is clearly expressed." Am. Jur. 44, p. 96. Quo warranto can be resorted to only when the act or wrong complained of does injury to the public. Consequently, it cannot generally be invoked for the redress of mere private grievances or the vindication of private rights. 44 Am. Jur. page 98. "Quo warranto proceedings deal mainly with the right of the incumbent to the office, independent of the question of who shall fill it. They are brought in the name and on behalf of the people to determine whether the incumbent has unlawfully usurped or intruded into or is unlawfully holding the office. They are not, primarily, in the interest of any individual, but are intended to protect the public generally against the usurpation of offices and franchises. 44 Am. Jur. p. 106.
In the case of Omar v. West, 186 Miss. 136, 188 So. 917, the Court held that a person who makes no claim to have been elected to a certain office in a private suit cannot oust from that office one declared to have been elected by the governing authorities. In such a case the question is a public and not a private one, and the only remedy is by quo warranto, as provided by Sec. 1120 Code 1942. The Court, in the case of Ellis v. Greaves, 82 Miss. 36, 34 So. 81, specifically held that a trusteeship of a public school is an office within the provisions of this statute. In the case of Town of Sumner v. Henderson, 116 Miss. 64, 76 So. 829, cited in Yates v. Summers, 177 Miss. 252, 170 So. 827, the Court stated that the proper remedy for trying the right and title to office occupied by specified defendants who are exercising the duties of these offices is by quo warranto. May v. Young, 164 Miss. 35, 143 So. 703 (quoted in Omar v. West, supra), "expressly holds that quo warranto is the remedy".
H.H. Parker and Grayson B. Keaton, for appellee.
It is the contention of the appellee that dissatisfied patrons in a school election cannot by obtaining the name of the district attorney, and claiming a public interest, review and contest an election which has been held at the proper time by the proper authorities, in the proper manner and the result duly certified within the time to the proper officers delegated by law to accept the certificate of the returns. When all of these things have been done there is only one way open and that is by appeal under the statute. This was not availed of by the dissatisfied, or disgruntled patrons who sought to avoid the requirements of the law by procuring the name of the district attorney to be used instead of following the manner provided by law.
There is one observation that the appellant's position forces the appellee to answer, and that is appellant's position that this trusteeship is a matter that the public is interested in. This is true; the public is interested in any public officer to the extent that the official filling any office is a person qualified under the law to hold the office, is of good moral character, capable and efficient, but because of some disgruntled person, that a qualified person of good moral character and intelligence has been elected, does not make it a matter of such public interest that the district attorney, or the State, acting through any official, can carry on a private flight of a disgruntled or dissatisfied or defeated candidate for such office.
It is nowhere alleged in the information filed herein that the appellee, M.J. Bounds, is morally unfit, or disqualified by reason of lack of intelligence, or that he is not a patron of the school, not eligible for office; the only complaint is as to some of the voters being, as appellants, say, denied the right to vote. This amounts to an irregularity, which directs itself entirely to the managers of the election and does not rise to that status which would justify the district attorney or a state officer intervening in the interest of the public and we submit that the holding of the lower court should be affirmed.
The final opinion on the suggestion of error, was as follows:
In our former opinion we followed the emphasis placed by counsel upon the issue of jurisdiction, but we did not base our views upon an affirmance of the finding by the chancellor that none existed. Although the plea raising such bar was incorporated in the answer of the respondents, our attention was directed to the fact that, while the answer set up a valid defense, there was no testimony to support its allegations. In submitting to this distraction we were in error, since it now more clearly appears that the respondent was precluded by the ruling upon the plea in bar from adducing testimony to support his answer.
We now decide the issue of jurisdiction and conclude that the learned chancellor was correct in dismissing for lack of jurisdiction the petition for writ of quo warranto. (Hn 1) It is immaterial that a school trustee is a public officer and that Code 1942, Section 1120, authorizes quo warranto proceedings to test the right of a public officer to such office.
(Hn 2) There is no disqualification alleged or shown, and Section 3287 provides the exclusive remedy for one who contests the manner or results of an election. Loposser v. State ex rel. Gause, 110 Miss. 240, 70 So. 345; Warren v. State ex rel. Barnes, 163 Miss. 817, 141 So. 901, and cases cited in the opinion.
The petition discloses that the results of the election were certified to the county superintendent of education, who issued a commission to the respondent.
Overruled.