The Fargo forum and daily republican., 1909-04-24
CHANDLER WINNER
In SUPREME COURT
APPOINTMENT OF sARLEs MADE
THREE YEARS AGO TO DENTAL
BOARD, HELD TO BE LEGAL -
DR.. CHANDLER WILL MOVE TO
FARGO IN NEAR FUTURE.

Appointed a member of the state
board of dental examiners Dec. 22
1906 by Gov. e. Y. Sarles to fill the
place formerly held by DR.. A. S. Ram
sey of Grand Forks; refused the pri-
vilege of participating in the business
transacted by the board on the ground
that there was no vacancy; declared
to be: qualified to hold the place by
Judge Chas. A. Pollock in the district,
and again by the supreme court-this
was the experience of DIR. Frank w.
Chandler.
A decision fled by the. supreme
court yesterday aff1rms the decision
| of Judge c.. A. Pollock. The trouble
started when DR.. Ramsey moved to
| Canada to, look after interests three
years ago. Before he had resigned
or missed one meeting of the board,
Gov. E. Y. Sarles' appointment was
made. ..&.
At the time the action was started
the dental board was composed of III.
L. Startling, C. F. Sweet, Geo. r. Nc
Donald and w. J. Brownlee, the for
mer being secretary. .'. i.
80 When; refused the%fight TO sit on the
board, DIR. Chandler secured an al
tentative writ of mandamus in the
district court. The hoard iled an ans
wer. to which the plaintiff ,demurred.
The demurrer was sustained by Judge
Chas. A. Pollock and his decision was
affirmed by the supreme court. i. .5.
DR.. Chandler, who, left Valley City
the first Of the year, engaging in an
other business in Minneapolis, will
move to Fargo in very. short time,
taking up the practice of dentistry
and assuming his place. on the board.
Following is the syllabus:
Frank w. Chandler, respondent, VS..
H. L. Startling, ct al, as members of
the state board of dental examiners.
appellants. -.
/. In a nandamus proceeding for the
purpose of compelling recognition OF
his rights. brought by one having a
prinna facie title to an Office by virtue
of a certificate in due form issued by
| the appointive power, it Is not neces-
sary that the action should be prose-
cuted In the name of the state,f as
plaintiff has a special interest therein
within the meaning of section 1908, r.
c. 1905. ---. , ,-s. >, -.... -, 90
q In. such a proceeding the prior
incumbent Of the ONCE is not neces-
sary party defendant. F.:
3. Mandamus is a proper remedy,
| under the facts set forth in the alter
native 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. &N.r'@ - y = rr'' So T.
4. In such a proceeding. the ulti-
mate right and title to the Office can
not be ,litigated, but plaintiffs prina
facie right and. title thereto Is con-
elusive, except as to a de facto officer.
S. The allegations in tie alter
native writ which are not challenged
by proper denials in the answer, show
that vacancy existed in the office
at and prior to plaintiffs appoint
ment, and hence that one r, who was
former incumbent Of the Office, was
not de facto officer. as he did not
have even color of title thereto.
s. The answer ADMITS the facts
showing plaintiffs prima facie title
to the Office and fails to properly deny
any .issuable fact alleged in the alter
native writ or to ailege facts suffi-
cient to contribute a defense.
(Syllabus of the court)
Appeal from district court, Cass
county: Pollock, ].
Action by Frank w. Chandler
against Fl. l.. Startling, ct al. as mem
bers Of the State Boa.~1 or Dental Ex-
aniners. From an order sustaining
plaintiff's demurrer to defendants
answer and granting a peremptory
writ nf mandamus as prayed for by
plaintiff, defendants appeal.
Affirmed.
H. #. Miller, for appellants.
Bangs, Cooley & Hamilton, for re-
spondent
Opinion by Fisk, j. All concur.
"a