The Sully County watchman. (Clifton, Dakota [S.D.]) 1883-1894, 1892-01-23

the other person and such other person, with full
knowledge OF the fact steps In and mmed lately pro.
ceads to do business though he was In fact the
ofhcer, as between such two persons. the pre-.
vously IN possession MUST be considered the officer
dc facto."
Sec Brady vs. Therit. IL Kan 4S6.
This last quotation puts the whole thing
in II nutshell, as the proceedings mention.
ed are identical with the proceedings of
Mr.. Smith in taking possession of the
Sheriffs office on the 4th inst. during Mr..
Fausts temporary absence. after refusing
to deliver up the property in his Office.
| think that all the foregoing fully
establishes the fact that Mr.. Faust is and
| has been during so much Of the present
| term OF office rs has expired and will con.
| tinue to be until ousted by due pro cess
Of law, the Sheriff dc factn of Sully
County. L think we have fully shown
LIST. That the Board of County Commits
| siOncrs had no authority or Jurisdiction
| in the matter; 2d, That their action being
of no effect, MIR. Smith acted without any
authority of law; 3d, That his action could
not and has not in any way altered the
status OF either party as To the office or
performance of its duties; 4th, That all
MIR. Faust's official acts have been legal
and binding as to the public and third
parties, and consequently or infcrentially.
none of MIR. Smiths acts are or have been
legal in any respect. and that no party
having employed Mr.. Faust. officially.
can suffer through any Of his official acis; :;
and that neither the public or myself need
care particularly what may be the result
of any of MIR. Smiths acts. official or
unofficial, rs we are not parties to them.
but cSn willingly let those who have en-
| ployed him take care of themselves
l In rnncluSi,p ! wiSh IN unu ,I,. I ,o,Ii
If space and time permitted, add dozens nf
decisions all in line with what | have
quoted, but in all my search have failed
To find one in contradiction of those
quoted
| That find nowhere any other mode Of
procedure to gain possession of an Office
but Contest or Quo Warranto. except in
one case of Mandamus. where the court
stated The proceedings were unusual and
allowed only on the ground of pIblic
policy in that particular case and were
not intended to establish rule or
precedent.
| AS TO the question of who was elected.
the courts in all former decisions, the law
rs laid down in our Code. and the late
decision of the Supreme Court in this
particular instance. all point without con.
ilictlon, and in plain manner, to a plain.
speedy and adequate remedy. for any
wrong Mr. Smith may seem TO have suffer.
ed In the matter.
Both Mr.. Smith and Mr. Faust. if before
the Courts in a contest. would be prcsum.
! ed 10 he honest in their claims and all fair
minded men should. without some evi.
dence To the contrary, admit the same
presumption.
Mr. Faust came into pcacable possession
of the Office. and has acted as u de facto
officer, believing in good faith that he j.
| rightfully entitled to the same and that if
the case ever comes up for adjudication il
will be so decided Mr. Smith casts "A
doubt on his good faith in his claim to the
office bv persistcntly refusing 10 take legal
proceedings to secure his right, if he has
any. He is the only party who can bring
the case up for trial. and it is his fault
alone, that by so refusing or neglecting to
act, any doubt is left in the matter.
| A year ago this winter met Mr.. Smith
in Pierre. We hav" always been good
| friends, and at that time advised him
that II he was going To proceed in the
| matter he should bring some action that
would be decisive; that Mandamus would
not lie to give him possession of the Office.
and he would only waste his money in
fighting such a suit but he said he
thought was sprrdiudiccd and did nol want
him To get the Office. lie was advised in
the same way by others rs have been
informed but chose TO act as he has. and
all the results. of every kind. in this matter
are to be traced directly to his cwn action
Mr.. Faust is not able to bring an action
suing for an Office of which he has had
possession, any more than one of us could
sue neighbor for horse which we have
in our own barn and in pcaceabc posses
| SION. lie can sImDlN prprppi ahout his
business and wait until his position is
attacted In the meantime all his official
acts are established by law as valid as
If there were no dispute whatever
| w \. MELooN