Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1895-02-01
AN INTERESTING CASE
The Supreme Court Files Its De-
cision in the Callahan-Butler
Case from Cass.
Decision of the Lower Court Sustain.
ed and Butler Will Take His
Office,
G. A.. Pollock Talks on Resubmissio,
Various Items of News About
the City.
Tho Butler-Callahan Case.

Tho Butler-Callahan Case,
In the supreme court this morning a
decision was filed in the case of Gala
han VS.. Butler, from Cass county, in
volvlng possession of the office Of county
superintendent of schools. The case is
n which has been in the courts in
some form or other since the last school
election in Cass county, where Callahan
and Butler we're both candidates, and
the latter was successful. Callahan was
superintendent of schools at and pre-
vious to the time of the election. After
Buffers election he received the proper
certificate and qualified by filing his
bond and taking the oath of Office. On
Oct. 6, last, he applied to Callahan for
possession Of the office, and his demand
was refused. He then applied to and
secured from the district court an alter
native writ of mandamus to Callahan,
to how cause for his refusal to turn
over the office. To this Callahan set
forth that Butler did not possess the
prescribed educational certificate for
county superintendent as required by
law. That, under the circumstances, he
was not legally qualified to hold the
office, an that for this reason Callahan
had refused to turn over the Office.
The r%elator, Butler, interposed a de.
murrer to this answer of Callahan, and
the trial court sustained the demurrer
and entered judgment, directing the
peremptory writ to issue.
From this, Callahan appealed to the
supreme court, claiming that the trial
court erred in sustaining the demurrer
to the answer. The supreme court has
sustained the decision and action of the
trial court. which will give the Office to
Butler, the OBSERVATION-DISCLOSURES. The
decision in the case is by Chief Justice
Wallin, and the syllabus is as follows:
A a general rule the writ of man
damus issues to admit in office a candid
ate holding a valid certificate of election,
who has qualified by taking the official
oath, furnishing the prescribed official
bond and who has demanded possession
OF the incumbent.
"Where a defacto officer is exercising
official functions under color of right,
the writ does not issue to dispossess
him, but where an incumbent is holding
over after the expiration of his term and
until a successor is elected and qualified,
and has no other claim to the office, he
is not such defacto officer, as against a
candidate who holds the proper certif-
cate Of election and has qualified for the
office in mannera and form as the law d.
reefs. Such incumbent is a mere in.
truder as against such relator.
"The prevailing rule of law is that the
title to an Office will not be tried by
mandamus. Some states hold other
wise.
"In this state, the title to a county Of
flee may be tried either by the statutory
mode by contest as provided by Section
l489-l50l, Compiled Laws, or by a civil
action in the nature Of quo warranto, mi
tiated by an official representative Of the
county as provided by Sections 5345 ct
seq. Compiled Laws.
I'm mandamus against a county officer
holding over after the expiration of his
term, brought by a relator having a GER.
tlficate of election, and who has duly
qualified for the office by taking the oath
and giving the required bond, the re.
lator's prima facie title to the office can
not be defeated by an answer which ad-
mlts the prima facie title, but contains
the averments of fact which involve the
ultimate title of the relator to such
office. Such an answer is demurrable, if
1t contains only such facts as would, if
established, defeat the REALTORS ultimate
title in a proper proceeding to try title.
I'm this case it appears by the aver
ments in the alternative writ that the re-
lator has such prima facie title to the
office of county superintendent of schools
OF Cass county. Defendants answer to
the writ admits the facts constituting
such prima facie title, and alleges as new
matter, that the %relator, when his term
commenced and for some time prior
thereto did not have or hold the ed
tional certificate prescribed by statute
Sec. "a, Chap. 81, Laws l89O) or it's
equivalent. The trial court sustained
REALTORS demurrer to the answer. Held
that such ruling was proper. Held fur
Their that the new matter in the answer
had reference only to the REALTORS ulti.
mate title to the office, aud such title
cannot be legitimate in this proceeding,
which involves only the right of present
possession. In such cases the relator
cannot be driven out of court by the
mere fact that the incumbent pleads
facts in his answer, which call for a de-
termination of the REALTORS ultimate
title to the office, and only that title"
Benton and Amidon are ATTORNEYS for