People ex rel. Glidden v. Green , 1 Idaho 235 ( 1869 )

Miller, J.,

delivered the opinion of the court.

Bowers, O. J., and Kelly, J., concurring.

On the fourteenth day of January, 1868, the people, upon the relation of "W. "W. Glidden, by the district attorney (under section 272 of the civil practice act (Laws of Idaho, first session, p. 138), filed the complaint herein, in the court below — third judicial district, in and for the county of Ada, charging that defendant Green, “without any legal right, warrant or authority whatever,” had since the sixth day of January, 1868, “held, used, and exercised” the office of county treasurer of Ada county; that Green had been elected to said office at the general election held in August, 1865, and entered upon the exercise thereof in January, 1886; that the relator was elected to said office at the election held in August, 1867, for two years, com-meuciug January, 1868, and bad duly qualified, and concludes -by asking judgment of ouster from said office of defendant Green, and “further judgment that the said W. W. Glidden be entitled to the said office.” To this complaint, the defendant Green on the twenty-fifth day of January, 1868, filed his demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and upon the further ground of the non-joinder of parties plaintiff. Upon the complaint and demurrer issue was joined and the case submitted, and after argument on the twenty-seventh of April, 1868, judgment was rendered sustaining the demurrer, with leave to the plaintiff to amend.

Afterwards on the fourth day of May, 1868, the people ex rel. Glidden, by the district attorney, filed their amended and supplemental complaint, pleading matters occurring after the filing of the original complaint, to wit, the removal of Green on the eighteenth of April, 1868, by action of the board of county commissioners for Ada county, and the appointment of Glidden to the office on the same day by said board, and his subsequent qualification under said appointment on the twenty-third day of April, 1868. After the joinder of issue on the demurrer to the original complaint and the submission of the demurrer upon argument to the judgment of the court, but before the rendition of the judgment thereon, to wit, on the twenty-fifth day of April, 1868, Thomas E. Logan filed his bill of intervention claiming that he was elected to the office of county treasurer of Ada county in August, 1866; 'that he had never received his certificate of election, that he had not taken the oath of office or filed the necessary bond required by law, but avers his readiness to do so, and that he was elected to hold the office for two years from January,’ 1867, and that Glid-den claims to hold by an election held in August, 1867, for two years from January, 1868, and that no vacancy existed in said office at the time of Glidden’s election which could be legally filled by election.

To the filing of this intervention, defendant Green objected, and also demurred to the same on the fifth day of May, 1868. Tbe court below beard tbe objections to tbe filing of tbe intervention and tbe demurrer thereto at tbe same time, and gave judgment on tbe demurrer, and dismissed tbe intervention on tbe seventh of May, 1868. After-wards, on tbe fourteenth day of May, tbe plaintiff did through tbe district attorney, in “open court,” withdraw bis amended complaint and abandon tbe further prosecution of said proceeding, and thereupon judgment was entered for tbe defendant Green for bis costs and tbe complaint dismissed.

Tbe intervenor, Thomas E. Logan, now sues out a writ of error to this court for tbe reversal of tbe judgment of tbe court below on tbe demurrer of defendant to bis petition of intervention. Tbe respondent in error, Green, moves this court to quash tbe writ upon the grounds that tbe same was improperly issued, in this, that there is no writ of error allowed under tbe statute, that title 10 of tbe civil practice act is in direct conflict with title 9, Laws of Idaho, first session, pp. 140, 147, secs. 281, 312, and that tbe appeal is tbe only proper remedy. We are not prepared at present to pass upon this motion, neither is it necessary in order to fully and fairly decide the case upon its merits. There are other points upon which it must turn, no matter what view we might take of tbe motion to quash tbe writ. Tbe points presented for our decision are:

1. Did tbe intervenor, Logan, have tbe right to intervene in tbe original action of The People ex rel. Gildden v. Green?

2. If Logan did have tbe right to intervene, does bis petition of intervention show a cause of action ?

Section 601, p. 204, Laws of Idaho, first session, says: “Any person shall be entitled to intervene in an action who has an interest in tbe matter in litigation, or in tbe success of either of tbe parties to tbe action, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action between other persons, either by joining tbe plaintiff in claiming what is sought by tbe complaint, or by uniting with tbe defendant in resisting tbe .claims of tbe plaintiff, or by demanding anything adversely to both plaintiff and defendant.”

Section 602 says: “Any third person may intervene either before or after issue has been joined.” Under section 602, admitting both his right to intervene and the sufficiency of his complaint in intervention, Logan was not in time in filing his petition according to the rule laid down in Hocker v. Kelly, 14 Cal. There the petitioner filed his bill after issue joined, and as the case was in the act of trial, and the court held he was too late. Here Logan files his petition after the joinder of issue on the demurrer, and the submission of the case thereon; and the court below, under the rule laid down in Hocker v. Kelly, above cited, should not have allowed him to file his petition, but should have sustained defendant Green’s objections to its being filed in the first instance.

But to the first proposition upon the record as to Logan’s right to intervene: The statute uses the word “action” in speaking of the right to intervene. This means a civil action purely. Is the original proceeding a civil action in which Logan seeks to intervene? We think not. It is a quasi criminal proceeding instituted in the name of the people in the discretion of the district attorney upon his own information, or “upon the complaint of a private person” against a usurper of any public office or franchise, etc., for the purpose of primarily ousting him, and the judgment need not necessarily be upon the right of -the party alleged to be entitled to the office,.but only upon the right of the defendant. This is by the express terms of the statute, section 276, civil practice act. The right to have the defendant arrested (section 276) and his being amenable to a fine in the discretion of the court (section 280) clearly stamp the character of the proceeding as one which is anything but a civil action. Originally this proceeding was purely a criminal one, being an information in the nature of a quo warranto, issued upon the application of the attorney-general from the king’s bench, and the writ having issued, the defendant was ousted and punished; and as all offices were supposed to be in the king, the person entitled was thereupon inducted into it. (4 Cow. 100, note.) In New York under a similar statute to ours, in 22 Barb. 114, the court refused to mandamus tbe attorney-general upon bis refusal to file an information upon tbe application of a person alleging bimself entitled to an office, tbe court bold-ing substantially that it was not a matter of right witli any person claiming an office, to bave an information filed in tbe name of tbe people for tbe ouster of an incumbent, but that it was a matter of discretion with tbe attorney-general, whether a proper case was made out for tbe issuance of tbe information, bolding that tbe word “may” must be interpreted in its literal sense, and leaving it discretionary with tbe attorney-general. Can that be called a civil action, i. e., tbe ordinary proceeding by which a right is enforced or a wrong remedied — when a party suing to enforce an alleged legal right, must get the permission of a second person to commence tbe action in tbe name of a third? Tbe proposition seems very plain. If, therefore, tbe original proceeding be not a purely civil action, Logan has no right to intervene. But, again, if Logan does intervene, be must claim with tbe plaintiff or with tbe defendant, or against both. He certainly does not claim with tbe people, for they say by tbe district attorney that Glidden is entitled to tbe office. He does not claim with Green, for be says Green is a usurper, and that be (Logan) is entitled to tbe office. He must therefore claim against both tbe people and Green. Now, tbe people alone can bave judgment of ouster. If be claims against both tbe people and Green, be claims against tbe prayer of tbe people, %. e., tbe ouster of Green, and also prays at tbe same time tbe enforcement of bis own right to tbe office, and bis induction therein, which is absurd.

But admitting that tbe proceeding is purely a civil action, has tbe intervenor such an interest therein as will entitle him to intervene. Tbe right to intervene has been taken from tbe code of Louisiana, and adopted into our practice. It is not every kind of interest which will entitle a party to intervene. Tbe true rule is laid down by Chief Justice Field in Haun v. The Volcano Water Co., 13 Cal. 62, and subsequently confirmed by tbe supreme court of California, in 18 Id. 378, 21 Id. 280. Says the learned judge in tbe case just cited: “The interest mentioned in the statute which entitled a person to intervene in a suit between other parties must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.” Applying the rule as here laid down to the original proceeding of The People ex rel. Glidden v. Green, could the judgment in that case affect Logan’s title to the office ? We think not. Logan claimed by the election in 1866, Glidden by the election in 1867, and Green to hold for two ye’ars (under the election of 1865) from January, 1866, and until his successor was elected and qualified. It is difficult to see how a judgment in favor of Glidden, or of Green as against Glidden, could affect Logan’s right to the office, or that he, Logan, “ would either gain or lose by the direct legal operation and effect of the judgment.”

But admitting the right of Logan to intervene, does his petition in intervention show a cause of action ? Green, it is alleged, wrongfully withholds the office since January, 1867, but the petition directly avers that the intervenor has failed to qualify, although claiming by an election in 1866, to hold the office for two years from January 1867. Now, section 107, p. 499, Laws of Idaho, first session, says: “ The county treasurer shall hold his office for the term of two years, and until his successor is chosen and qualified.” The right to hold until his successor is elected and qualified is as much a part of the estate in the office as the original term of two years. (6 Wend. 422; 10 Gal. 38; 20 Id. 503.) Now, before Logan can show his right to the office, admitting his claim to be valid, he must procure the ouster of Green; before Green can be ousted, it must be shown that he wrongfully holds; to show this it must be proved not only that his successor has been elected, but that he has duly qualified — not only that he is entitled to the office, but that he is qualified to enter into the possession the moment of the defendant’s ouster therefrom. The intervenor does not show himself in that condition, and the petition is in this respect fatally defective.

The judgment of the court below is affirmed.