Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-04-27
In the Supreme Court

Filed March 20, 1909.

, having a prima facie title to an office
| by virtue of certificate in due form
Issued by the appointive power, it is
not necessary that the action should
be prosecuted in the name of the
state, as plaintiff has a special inter-
est therein within the meaning OF
Section 1908, K. C. 1905. *.-
2. In such proceeding the prior
incumbent of the Office is not nee
essary party defendant.
3, Mandamus is a proper remedy
under the facts set forth in the al
tentative writ, to compel defendants
who are members of the State Board
of Dental Examiners, to recognize
plaintiffs prima facie right as an ap-
pointee to fill an alleged vacancy on
such Board, to sit thereon and to par
ticipate in the transactions of its
business.
4. In such a proceeding, the ulti-
mate right and title to the office can
not be litigated, but plaintiffs prima
facie right and title thereto Is con-
elusive, except as to de facto officer.
S. The allegations in the alterna-
tive writ, which are not challenged
by proper denials in the answer, show
that a vacancy existed in the Office at
and prior to plaintiffs appointment,
and hence that one r, who was
former incumbent of the office, was
not a de facto officer, as he did not
have even color Of title thereto.
6. The answer admits the facts
showing plaintiffs prima facie title
to the Office and fails to properly
deny any issuable fact alleged In the
alternative writ, or to allege facts
sufficient to constitute a defense.
(Syllabus by the Court
Appeal from district court, Cass
county: Pollock, J. Y
, Action by Frank w. Chandler
against H. L. Startling, ct al, as
members of the State Board Of Dent
al Examiners. From an order sus-
tanning plaintiffs demurrer to defen-
dants' answer, and granting pere-
mptory writ of mandamus as prayed
for by plaintiff, defendants appeal.
Affirmed. a W. #3Ss =
H. F. Miller, for appellants.
Bangs, Cooley & Hamilton, for re-
spondent. 4
Opinion by Fisk, J. All concur.
State Of North Dakota, ex rel,
State Farmers Mutual Hail 1nsur-
ance company, appellant, VS.. e. g.
Cooper, as commissioner of insurance
of the state of North Dakota, respon-
dent. ~
i. Although repeats by implica-
ton are not favored, two irreconcil-
ably repugnant acts passed at differ
emit times relative to the same sub
ject, cannot stand together and the
later operates to repeal the former.
Q. It Is therefore, held: That Sec
ton 4449 of the revised codes OF
900, as amended by chapter 1853 OF
the laws Of 1907, repealed Section
4447 of said revised codes, and that
mutual insurance companies organ
ICED under the laws Of any other
state or country, are authorized to
engage in the business of hail In
surance in this state by complying
with the provisions of said Section
4449 so far as it applies to foreign
mutual insurance companies.
(Syllabus by the Court.)
Appeal from the district court of
Burleigh county: Winchester, J. s
Engerud, Holt & Frame and
Turner, Wright & Lewis, for appel
ant. Gs !
Andrew Miller, ttorney general,
md Alfred Zuger, assistant attorney
general, for respondent. 5E
Opinion by Carmody, J. All con-
.ur except Morgan, c. j., not partiici- |
,ating on account of illness. n: