Ewing v. Turner , 2 Okla. 94 ( 1894 )

The opinion of the court was delivered by The questions for determination came up on the issues as shown by the statement of the case.

Can the controversy between the parties be settled without a trial of the title to the office of treasurer of the board of regents of the Agricultural and Mechanical college? If the title to this office will necessarily become involved in the determination of this controversy, the court in the very beginning will encounter a rule of law so well established in our jurisprudence as to admit of no controversy. It is so well settled that mandamus will not lie to try the title to an office that the subject needs no discussion here or elsewhere. If the title is not involved and the aid of the writ ofmandamus were sought merely to obtain possession of the effects, monies and official belongings of the office, a different question would be presented.

Counsel for relator contends very earnestly that an inquiry into the title to the office mentioned is unnecessary to determine to whom the money in the hands of the respondent should be delivered for the public use for which it was appropriated. It is further contended by relator's counsel that the courts will sometimes inquire incidentally into the title of an office, to the extent necessary to determine who should have possession of the effects and belongings of the office, and, in support of this theory, cites numerous cases, the leading one being People vs.Head, 25 Ill. 325, in which the learned chief justice uses this language:

"Whatever our decision may be, it cannot affect, in the least, the contest now going on in the legal tribunals. We can only determine whether the relator is entitled to the records, etc., pertaining to the office. It is true this involves, incidentally, the inquiry as to who is entitled to enjoy the office for the time being; but we by no means settle the question whether the relator was legally elected or not."

See, also High on Extraordinary Legal Remedies, p. 61;People vs. Kilduff, 15 Ill. 492; Crowell vs. Lambert, 10 Minn. 369;Atherton vs. Sherwood, 15 Minn. 221; State vs. Layton, 4 Dutch, 244; Burr vs. Norton, 25 Conn. 103; Felts vs. Mayor, 2 Head 650; King vs. Owen, 5 Mod. Rep. 314; Rex vs. Clapham, 1 Wils. 305; King vs. Ingram, 1 Black. W. 50; Hooton vs.McKinney, 5 Nev. 194; Bonner vs. State of Geogria, 7 Geo. 473;American Railway Frog Co. vs. Haven, 101 Mass. 398; State vs.Goll, 3 Vroom 285; St. Luke's Church vs. Slack, 7 Cush. 226;Rex vs. Wildman, Stra. 879; Anon. vs. Barn, K. B. 402; Waltervs. Belding, 24 Vt. 658; Kimball vs. Lamprey, 19 N.H. 215; Kingvs. Payn, 1 Nev. and P. 524; Allen vs. Robinson, 17 Minn. 113;People vs. Stevens, 5 Hill, 616; People vs. Olds, 3 Cal. 167;State vs. Pitot, 21 La. An. 336; and Hussey vs. Hamilton,5 Kan. 462.

In the citation of these authorities, the relator again fails to make the distinction in cases of this kind. While the title is incidentally involved, in some of the cases cited, yet their clear import is the declaration of another rule of law which has become stare decisis et non quieta movere. The rule established by this long line of authorities may be found declared in High on Extraordinary Legal Remedies, pages 62 and 63, as follows:

"The branch of the jurisdiction under discussion is of ancient origin and was exercised by the king's bench at an early day. Wherever the term of an officer has expired, he may be compelled by mandamus to turn over to his successor, all records and books pertaining to his office to which the public are entitled to access; and the writ even may be granted for this purpose in aid of the person declared duly elected to the office and holding the certificate of election and duly sworn, although proceedings are pending to test the legality of his election, since the court by granting the writ does not finally determine upon the legality of the election. And while it is true that quo warranto is the only method of determining disputed questions of title to public offices, yet a mere groundless assumption of an election on the part of the respondent and a pretended exercise of the functions of the office de facto, will not deter the court from granting themandamus.

"As regards the evidence of his title which the relator must show who seeks the aid of mandamus to recover possession of official records and insignia, it is held that, having received a certificate of election and qualified in the manner provided by law, he is, prima facia, entitled to their possession and may enforce his rights by aid of the writ. And upon the application for mandamus the court will not go behind the certificate of election to try the relator's actual title. It is, therefore, wholly immaterial whether the relator is eligible to the office in question or whether he is duly elected thereto, since to try such issues would be to determine the title upon proceedings in mandamus, which the courts will never do."

As to the writ of mandamus then, we have two settled rules as to public offices and the effects and belongings thereto: the one that mandamus will not lie to try title to a public office, and the other, that it will lie to compel a predecessor to deliver to his successor the books, papers, records, monies, insignia and paraphernalia thereof when the relator shows an absolute prima facia title. No court or lawyer of to-day-would for a moment controvert these two well settled rules of modern jurisprudence.

Does the case of the relator fall within either of these rules? He must concede that the title cannot be determined in this action. Then, as a matter of course, if he claims relief under the other rule, he must show in himself, at least, aprima facia title; and this, none the less, notwithstanding an acceptance of the doctrine, as spoken by the learned chief justice in the case of People vs. Head, supra, that the title may be incidentally inquired into in determining who should have possession of the books, records, etc., of a public office. While it may be true that the courts will sometimes inquire incidentally into the title to the office in determining who is entitled to the official belongings thereof, yet no case can be cited where the court so held, unless the relator, at the same time, proved in himself, at least a primafacia title thereto.

It may then be asked what it takes to constitute this evidence of title. The numerous authorities above cited will abundantly answer the question. It may be stated as a general rule that when the relator shows a certificate of election to an office, regular upon its face, or any lawful evidence of title later and superior to any other claimant, and that he has qualified as required by law, this may be deemed a prima facie title thereto.

What does the record in this case disclose? It discloses that the relator became a member of the board of regents by virtue of an appointment by A. J. Seay, on the 23rd day of January, 1893, at that time governor of Oklahoma Territory; that on the 31st day of July, 1893, the successor of A. J. Seay, W. C. Renfrow, removed the relator and appointed as his successor on August 4, 1893, one F. Carruthers, and issued to said Carruthers a commission for the same office, under the seal of the territory, executed in a manner as solemn as any official paper could be issued by the executive authority of any state or territory; that the said Carruthers had qualified in form of law and was, too, claiming the funds in the hands of the respondent, Turner, under and by virtue of his office; that the respondent is holding the funds of the college in his possession solely on account of the rival claimants to this office contending therefor.

Even if nothing more could be claimed for the commission issued to Carruthers, it has the effect to cloud the title of the relator and render it impossible for him to show aprima facia right to the enjoyment of the office or to the possession of the effects thereof.

It is further contended by the relator that Governor Renfrow had exercised power in his removal without authority of law, and that incidentally this question can be inquired into by the court to determine if the commission issued to Carruthers is void, and if so, a void commission could in no manner affect the title of said relator. This will not do, for the court, inmandamus, will not go behind the certificate or commission. When the relator seeks to go behind the commission of Carruthers and have it declared void, necessarily, he puts in issue the title to the office. From this there is no escape. In the nature of things it must be so, and upon this rock he must founder and here his case must fail.

The question as to the right of Carruthers to the effects and official belongings of the office in question by the aid of the writ of mandamus, is not before us, and a discussion of that question is unnecessary.

It follows that the peremptory writ must be denied. It is so ordered.

Dale, C. J. and Burford, J., dissenting.