The Sully County watchman. (Clifton, Dakota [S.D.]) 1883-1894, 1892-01-23
THE SHERIFF QUESTION.
It's Legal Phase.

County Commissioners, that the new
Board. then to be organized, being com
posed of four Independents and but one
Republican, were expected and had deter
mined to take some action in regard to the
conflicting claims of A.A. Faust and d. M.
Smith to the office of Sheriff of this coun
ty, and that such action was expected to
be something decisive in favor of Smith
and against the incumbent, Faust.
What such action could be- no one
seemed competent TO even satisfactorily
surmise, AS no one of the many talked
with had ever heard of such action by such
officers.
The arrival of the time for the meeting
brought together a large number of inter
ested spectators. but the action of the
Board was so prompt. and the resistance
thereto being merely formal, and not such
as the friends of Mr. Smith had evidently
expected TO Judge from the number of
strikers brought in to meet il that the cir
Gus was soon over with, and everything
apparently sailing along very smoothly.
Every one is by this time acquainted
with the proceedings of the Board and ID.
NJ Smith, and the same is fully set forth
in that weeks article of the journal"
which | wish To call attention TO, and an
swer, ms | think the same very unfair
statement of the present condition of the
affair, and as nearly all our county are di-
rectly interested To know the exact stand.
ing of the two claimants of the Sheriff.
office. venture on Il long article, hoping
to throw some light on the matter.
do not care for the purpose of this ar
ticle To discuss who has the best right un
der our last election To possession of the
office, it is mmatertial and has never been
tested.
The question is: Who is Sheriff de tacto?
That is, who will the law recognize as lc-
gally in possession of the office and whose
acts are good as 10 the public and third
pirties. The following is the article in
the journal" the editor of which has
frequently asserted that he has studied
law. but appar ertly tu as little purpose as
the "ablc and conscientious" lawyer who
advised the Board to act as they did:
The Sheriff question, a. far IA possesson of the
Office is concerned, wa. settled, last Monday, by the
exception, withdrew from his bond An order was
issued b. the Board directing him 10 vacate the
office aud turn over the same To the Chairman of
the Is ard. This he refused 10 do. The Board
then ordered Mr. Smith a. take possession of the
property, which he did. ID. NJ. smith IL now not
only Sheriff de jure but defactO. This 80 tied the
matter as far rs the county is concerned but suit
will DE commenced against Mr.. Faust and his
bondsmen ON the bonds xiv To the district court,
for all the fees collccred by Faust, and without
doubt ne will b. cnmp,lled to disrorge
1t IL a well established maxim of law that fraud
vit!ateS anything. When the Supreme Court DR.
derad new canvas aud that the votes of Grand
View precinct should he counted, they, by this
der, declared the first canvas fraudulent. Any Ger
tihcae uf election based upon that canvas, and af
fected by that decision, must also hc fraudulent.
Therefore every act that Mr., Faust has performed
a. sheriff since Mr.. Smith received his certificate
of election and properly qualified. L. Illegal. Every
land sale he has nude /, Illegal and the tile to
same cannot pass II" has laid the foundation for
an immense amount Of litigation and trouble for
years 10 come, not only for himself but for limo,
cent parties. '-Onda journal, Jan :, ls.2.
The journal says The Sheriff qucs-
tion. so far as the possession of the office
il concerned, was settled last Monday by
the County Board-an order was issued by
the Board directing him to vacalc the of
flee and turn over the same To the chair
man Of the board, this he refused to do
The Board then ordcrcdilr Smith To take
possession OF the property which he did
ID. NJ. Smith is now not only Sheriff de
ju but de facto."
We can hardly see it in that light on
reading the following authorities and con
sulting our Code n little.
The first question arises rs to what right
the Board had to declare vacancy or
call on Mr. Faust To del yer up his records
The Code gives the following:
Sec 1885, Political Code EVERY office shall be-
come vacant on the happening of either of the fol
loving events before the expiration Of the term Of
"iiice: l The death of the incumbent. = His
resignation 3, His removal from office. 1. Fail
ure Ia qualify provided by law. B. His cea-iug
TO be resident OF the Territory lStatel district,
county township or precinct in which the duties
of his Office are 10 be exercised or for which h.
may hay. been elected. b. His conviction of any
infamou. crime or of any ofi.ms" involving vo
ldton of h- official oath. :. Whenever a iudgmen
shall bc Obtained against him for u breach of his
official bond"
None of the foregoing are claimed to
have happened in this case. if we except
the claim made by some that he was re
moved by the board. which seems To be
the ground taken by the journal }; there
fore the Board could not declare the office
vacant or order Mr. Faust to vacate on
any OF the above grounds, with the cx
ception mentioned.
AS to the exception; let us see what the
Code says about removals See 1887 Po-
iical Code. gives the following causes for
removal and no other:
l. Habitual or wifi neglect Of duty. = Gross
partnlity. 3. Oppression g. Ext"riion. D. Cor
ruption. q. Wlful maladmln rat ion Of Office.
Habtual drunkenness. =. Fol failure to produce
aud account for all public funds and property in
h hands nj any settlement or inspection author
ICED by law
We have never heard any Of the above
charges made against Mr.. Faust; but if all
had been made none have ever been cs-
tablished rs required by law. This same
section just quoted also provides that of
ficers may be CHARGED. TRIED and removed
from office for such causes. Sec. 1888.
gives the duty of the Commissioners in
such cases. as follows:
The Board of County Commits sioners in the
name oi the County or any person in his own name
may make snch charg. aud bring the action, AND
THE DIsIHIcr COURT SHALL HAVE EXCLUSIVE oni-
GIsAL JuHISDICTIos THEREOF"
The above are the only provisions OF Law
for the occurrence of Il vacancy or the re
moval Of an officer Of the County. aud
think circctually dispose of any claim of
power or jurisdiction in the matter by the
County Board which opinion find fully
established bv the following decisions of
knnrpne ('nurts and many marc uniphi h,.