State Ex Rel. Burke v. Commissioners of Bessemer City ( 1908 )

Defendants appealed. This is a mandamus to compel the town commissioners of Bessemer to reinstate the relator in the office of town treasurer, from which he had been removed by them, and to approve the bond tendered by him. The court, without passing upon the prayer to compel reinstatement, ordered the defendants to "accept and approve" the bond tendered.

The facts of this controversy are set out in the quo warranto proceedings — Burke v. Jenkins, ante, 25 (which are hereby referred to and made a part of this case), in which it was adjudged that the relator was not entitled to recover said office. This proceeding, therefor, has no longer any purpose. It is proper to observe, however:

1. That title to office cannot be determined upon a mandamus. Ellison v.Raleigh, 89 N.C. 125; Brown v. Turner, 70 N.C. 93; Howerton v. Tate,66 N.C. 231.

2. That, unless the title to the office is uncontested or has been adjudged on a quo warranto, a mandamus cannot issue as to the bond, and even then it cannot require the defendants to "accept and approve" the bond. It can only require them to act, not compel their judgment, because they are individually liable if they take a bond known, or which should be known, by them to be insufficient. Buckman v. Commissioners,80 N.C. 121; Harrington v. King, 117 N.C. 117; Barnes v.Commissioners, 135 N.C. 38; Glenn v. Commissioners, 139 N.C. 419. A judgment for plaintiff on a quo warranto compels his admission to office. The mandamus lies to compel the consideration of the bond then tendered by him, not its acceptance. Should it be factiously rejected, that matter can be shown in proceedings for mandamus, and possibly by action for damages against the factious board. In the meantime the officer is in office by virtue of the judgment, and can be again ousted only upon application to the court to revoke its judgment of induction for his failure to tender a proper bond. The (48) judgment herein was premature and unauthorized.

Reversed.

Cited: Rhodes v. Love, 153 N.C. 470.