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


applies only where the title Of the applicant is
free from doubt"
N. w. Reporter 90, page 3s3. In this case de-
fendant was appointed Street Commissioner by
with him and passed. an order removing him from
office and appointed the plaintiff to that position
and he began To act, but defendant refused to give
up property In his charge. Held that defendant
was still in Office and City Council had no power
TO remove him In the absence of express legislation
to that effect"
The above Is only one of many cases es-
tablishing the well settled principal tha,
municipal corporations have no power. ex-
cept by express statute, and its officers
cannot exceed those express powers.
See Auditors vs. Benoist, - Mich, Page l0):
IA person actually obtaining the actual indicia
| of title Is u legal officer until ousted."
This was in the case Of county officer
Nothing in the late decision of the Su
preme Court, which has been so much
talked about, can be construed To intimate
that anybody but competent court could
give Smith possession to the indicia of IL
tie to the Office, if Faust refused to deliver
peaceably. The Supreme Court decision
repeatedly says " may be necessary for
him 10 bring quo warranto proceedings.
clearly indicating the lawful method of
procedure. which is very different from the
non n-descript proceedings of the Board
and of Mr.. Smith. quote the following
from the decision after having read the
whole OF it, and the quotations are verba.
tim and not separated from any matter
that would alter or qualify their meaning:
"7rue manddmus may not gipe him the
office. other proceedings may be necessary to
oust the incumbent and place the plaintiff in
office"
Again: "7he simple purpose and duty Of
the cdnUassing board is 10 ascertain and de-
clare the apparent result Of the coting. Al
other questions are TO be tried before the
roart for contesting elections, or in Quo
Warranto proceedings"
Referring to Strong" Petitioner. 90
Pick, 4S4, the Court says:
The cases referred 10 were applications
TO be admitted To an office This petitioner
only seeks for a certificate Of his election :
THIS, il he obtains II, uW not necessarily
oust the incumbent or gire petitioner posses
sion Of the office, for these purposes he mny
still hare TO resort 10 a Ono |Idrrdnto.'
The order accompanying the decision is
| simply that the canvassing board recon
venc and canvas all the votes cast tor
Sheriff and make and file the proper alb
stract according to law. 1t did not order
the County Auditor to issue Il certificate
of election to Smith or any one. Mr..
Smith has received all due courtcscy from
the courts and public officers though they
may all be Republicans, and in spite of
the many Out-crics made by some of his
pretended friends.
Ii the action of the Board of Commits.
sionerS was without authority. and there
| fore, without effect what can we say Of
the action of Mr.. Smith who by force. IN
the absence of Mr. Faust. and after his
distinct refusal TO deliver up the books
and papers belonging to his office. tore
| open The book case and desk in the office
and proclaimed himself ready To do bust
ness as the now de facto Sheriff of Sully
county. OF what the courts may decide
rs To his criminality. | will not speak as
the people are not directly Interested. but
of the legality of his act. and its effect as
To the office, and whether he gained any
legal advantage, or placed himself in any
better position regarding the office and the
| performance of its duties we will inquire.
We find IA case in point in \. W. Repor-
ter AZ. page 754 This was II case where
there we've two contestants for the office
| OF County Auditor, and one was forcihly
put in possession, In regard to which the
| Court says:
at is always mn unsaemly spectacle when one
undersiakes TO obtain Office by force and anOih H.
er rcsisls such attempted taking. II never br
| count.nanced by the Courts" ale (the officer
previously ia possessinn never abandoned his Office,
aud the mere fact that he eit the room for little
wi lie could give the contestant manning himD nu
new or added rights IN the premises"
If the courts cannot countenance such
proceedings. they must of course be wrong.
Our Code lays down AS one of the maXims
of Jurisprudence that
| "No one can take advantage Of his own wrong"
The above quotations seem to me to
prove conclu,ivc!y that Smith could. as
the court says have gained no new or ad-
ded rights hy his forcible taking posses
sion of the few things remaining in the
| Sheriifs desk ut that time. or To have
| gained any advantage thereby.
| The article goes on To say
| when the supreme Court ordered a new can
vas and that the votes of Grandview precinct
should be counted they, by this order declared the
| first canvas fraudulent
This statement is, to put il mildly. a
"taint so; the court decision neither says
nor intimatcs that the first canvas was
fraudulent. The question of its correct
ness was not an issue, il was simply de
clared incomplete and the Board of Can
vassers ordered 10 complete the canvas as
TO the votes for Sheriff that being the on
! ~ issue before the court. He further says
| ANY certificate of election based upon that can
vas, aud affected by that decision, must also be
| fraudulent. Therefor" every act that Mr. Faust
| has performed sheriff since Mr.. Smith received
his certificate OF election and propeii iy qualified,
| IL Illegal. Every land sale he has made l. Illegal
aud title To same cannot pass lie has laid the
| Foundation for all immense amount of litigation
and trouble for years To come, not only for himself
but Tor innocent parties.
| Now if this be true | have personal rea-
sons for being very sorry, in fact should
be sorry several hundred dollars worth
and on this point | was very anxious TO
assure myself; but as had found his basis
of reasoning was false, his conclusions
must probably be false also, and on exam.
ination Of many authorities. (some of
which our friend has probably read | am
convinced that he is entirely wrong and
| was very glad To md that almost with
out exception, the lawyers having work
Tor the Sheriff of tins county TO do, are
giving it To Mr.. Faust, anu they probably
are better Judges" than either the Jour
nal or myself. lquote the following:
| L. y. Digest, Vol. =, Page $40. A person who
has actually obtained Office and been invested with
tn. legal indicia of title which Faust has IL until
| ousied which We have shown Faust never has been
| "A far ns "a render his Is