State Ex Rel. County of Hennepin v. Brandt , 225 Minn. 345 ( 1948 )

This proceeding in quo warranto is a direct attack on respondent's title to the office of member of the board of tax levy. His title to the office depends upon whether he is comptroller of the city of Minneapolis. Respondent admits that a vacancy occurred in the office upon the death of the incumbent, O.J. Turner. Under the charter of the city of Minneapolis, the office should be filled by an appointment by the city council. See, State ex rel. Peterson v. Hoppe,194 Minn. 186, 260 N.W. 215. Respondent not only disclaims any appointment by the city council to fill the vacancy, but asserts that the city council does not intend to make such an appointment, and that he is exercising the powers of the office of comptroller not under any appointment, but under a delegation to him by the city council of the powers of the office. He asserts that the city council's failure to make an appointment to fill the vacancy is for the avowed purpose of enabling it to change, as often as it sees fit, the person who shall exercise the functions of the office of comptroller under similar delegation of the powers of that office.

There can be no doubt that an incumbent's title to a public office can be inquired into only in a direct proceeding by quo warranto instituted by the attorney general or by his consent. Ryan v. Hennepin County, 224 Minn. 444, 29 N.W.2d 385. In a collateral proceeding, sufficient inquiry may be made to determine whether or not the claimant holds under color of title, or, as it is said, to determine whether he is a mere intruder. In United States v. Alexander (D.C.) 46 F. 728, the question was whether an order made by a territorial judge of Idaho after his successor had been appointed and qualified was valid. There, as here, there was no claim of right to the office, but only that the claimant exercised the powers thereof. It was claimed that no inquiry into the claimant's right to the office was permissible, not even one to determine whether he held under a claim of title thereto. The court said (46 F. 729):

"* * * It is claimed that in this action we cannot look beyond the act of the officer, and investigate his title to the office, but that the order must be accepted as one made by ade facto officer, and as valid. This proposition, unconditionally accepted, would make valid the unauthorized proceedings of a mere intruder into an office; of any one who might assume, without the semblance of authority, to act, and thus leave us remediless against usurpation and the grossest injustice. While the question of strict title to an office can be inquired into and determined only by direct proceeding, andwhile courts will not, in a collateral proceeding, make suchinvestigation, they may and will make such inquiry as willestablish the line between the mere intruder into an office andone holding it under some color of title, some semblance ofright, — between him without any authority whatever and the dofacto officer.

"* * * We think the rule is that inquiry into the title to the office of a party acting therein may be pursued far enough, in any case, to show whether or not he is a de facto officer, but further than this the investigation will not go in a collateral proceeding. The question here arises, what is a de facto officer? Generally there must be found some color of title,some semblance of right, to the office, either by some electionor appointment, though invalid, upon which the claim rests." (Italics supplied.)

Such an inquiry here shows that respondent has no title to the office and no semblance thereof. He is an intruder in a true legal sense, having no right of any sort to the office and making no claim of such right.

In State ex rel. Peterson v. Hoppe, 194 Minn. 186,260 N.W. 215, supra, we pointed out that the only way of acquiring title to the office of comptroller of the city of Minneapolis in case of a vacancy is by appointment by the city council in the manner provided in the city charter.

It is axiomatic that title to an office must rest upon election or appointment. Board of Education v. Civil Service Comm. 99 N.J.L. 106, 122 A. 807 (affirming 98 N.J.L. 417,119 A. 875). As said in Ames v. Port Huron Log Driving and Booming Co. 11 Mich. 139, 147, 83 Am. D. 731, 735: "It is difficult to perceive by what process a public office can be obtained or exercised without either election or appointment." In 42 Am. Jur., Public Officers, § 90 (citing State ex rel. Worrell v. Peelle, 124 Ind. 515, 24 N.E. 440, 8 L.R.A. 228), the text reads: "* * * there can be no valid appointment to an office so long as the appointing power is not called into exercise." Here, there was neither an election nor an appointment.

In State ex rel. Briggs v. McIlraith, 113 Minn. 237,129 N.W. 377, there was an appointment in fact by the appointing power. We there said (113 Minn. 241, 129 N.W. 379): "He [claimant of the office] was in possession of the office of city clerk, and discharging the duties thereof under color ofappointment * * *." (Italics supplied.) That fact distinguishes that case, for the reason that the claimant there held the office under a claim of title created by an exercise of the appointive power. Here, there is not only no appointment, but disavowal of any intention to make one.

Courts have always exercised the power, as an incident to determining the validity of acts of public officers, of determining whether attempted delegations of official power were valid. Muehring v. School Dist. No. 31, 224 Minn. 432,28 N.W.2d 655. Here, the attempted delegation by the city council to respondent of the powers of city comptroller is so clearly illegal as not to require any demonstration of that fact.

In short, there is neither claim nor basis for any claim by respondent of title to the office. The attempted delegation to him by the city council of the powers of the office and the exercise by him of the powers under such delegation are clearly illegal. Because that is true, I think we should make the writ peremptory.