Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1907-04-27
Important Decision Deter.
mixing Right to Hold
office
Action Of Lower Court inCase
OF Ward County Supefin.
tendent OF Schools
Affirmed

NAlkA AlVU Il. sSf%~.r[ =. a..
In the Supreme Court yesterday
decision was handed down in the case
of State of North Dakota ex rel G. L.
Bickford, respondent VS.. j. w. Fab
rick as county auditor of Ward coun-
ty, appellant. This is an appeal from
the district court of Ward county, Hon.
G. J. Fisk, then judge Of the LIST judi
cia1 District, sitting by request, and
was an application by the state for
writ of mandamus against the auditor
of Ward county and judgment was en-
tered in the district court in favor of
the plaintiff, and from this judgment
the defendant appeals.
The two questions involved in the
| matter are quite interesting and are:
(1) Was the relator. Bickford, the sup
erintendent of schools during the
years 1903 and 1904? and (2) If he was
is he entitled to the salary as such
officer during that period?. The re-
cord discloses that Mr. Bickford was
elected and acted as superintendent of
schools of Ward county during the
years 1901 and 1902; that at the gen
eral election held in November, 1902,
Miss Flora ]. Frost was elected to that
Office, and in due time filed with the
county auditor her official oath and
bond, as required by law, and demand.
ed Of Bickford the delivery of the Of
fee and supplies Of said county super
intendent Of Ward county. This de-
mand was refused by Bickford and
| neither the office nor the supplies were
ever delivered to Miss Frost and she
| never performed the duties of the Of
flee. Prior to her qualification, Bick-
ford Instituted in the district court of
Ward county a statutory contest of
election against Miss Frost and in No
vember, 1908, it was adjudged that
Miss Frost was not qualified elector
| of Ward county, and in consequence
was not eligible to any Office and was
not entitled to a certificate Of cleo
ton, and a judgment was issued re-
straining the county auditor Of Ward
! county from issuing certificate of
election to her. Bickford carried on
the functions of the Office during the
years 1908 and 1904, despite the fact
that his elected term had expired. He
sued Ward county for his salary,
amounting to almost $4,000 and judg-
ment for this sum was given him.
| From this judgment an appeal was
taken to the supreme court and in
the opinion of Mr.. Justice Spalding the
judgment of the district court is af-
| f1rmed. O.. .- g5
/ Judge Templeton sat on the case in
place of Judge Fisk, disqualified by
reason of having been the trial Judge.
The Syllabus by the court is as fol.
lows. .Ss ,s:..ss
4 |. A mandamus proceeding is not
an action under sections 6741, 6742
/ and 6743, R. c. 1905, being special
| proceeding. Under section 1929, R
G. 1905, only actions are triable de
novo in the Supreme Court and this
does not contemplate the trial de move
of special proceedings. So
I 2. A statement of the case ON ap
/ peal in mandamus proceeding which
does not contain specification Of err
rors does not admit of review of any
thing except the Judgment roll.
! 3. Under the statute of this state
| providing that the term Of Office d
| the county superinte Of schools
/ shall be two years commencing on the
/ first Monday in January, following his
election and until his successor ii
elected and qualities, a duly elected
and qualified and acting superintend
ent of schools continues such superin
tendent until his successor is elected
and qualities.
4. A county superintendent law
fully holding over after the expiration
of two years from his qualification a
superintendent, and continuing to per
form the duties Of the office, Is entitle,
to the compensation provided by lay
for the incumbent Of such Office.
(Syllabus by the court.) :5.