Gorman v. Havird

ON MOTION TO DISMISS OR AFFIRM.

This was a petition for a mandamus filed in the supreme Court of the territory of Idaho by the appellee, Havird, who was sheriff de facto, and also claimed to be sheriff de jure, of Boise county, to compel the county commissioners to issue warrants upon the treasury for the sum of $5,595.47, for his services and expenses as sheriff for the years 1887 and 1888. His claim consisted of a salary fixed by law at the sum of $2,798, and of expenses incurred as sheriff in the sum of $2,797.47, making the aggregate of $5,595.47. The items of his claim for expenses were $692.25 for boarding prisoners; $1,302 for jailer's fees; $595.22 for collecting a license tax; $156.15 for transportation of prisoners; and $51.85 for collecting a territorial license tax.

The answer of the county commissioners averred, in excuse of their non-payment of the claim, that an action in the nature of quo warranto had been begun against petitioner, and was still pending in the district court for the county of Boise, upon the relation of the appellant, John Gorman, to test the title to the office of sheriff; and that under the laws of Idaho, (Rev. St. § 380,) 'when the title of the incumbent of any office in this territory is contested by proceedings instituted in any court for that purpose, no warrant can thereafter be drawon or paid for any part of his salary until such proceedings have been finally determined.' By leave of the court, Gorman, the contestant, intervened in the case, claiming to have been duly elected sheriff, setting forth the pendency of the proceedings in the quo warranto case, and demanding that the writ of mandamus be denied.

The suit in reality turned upon the question whether the proceedings in quo warranto were still pending, or had been dismissed, and resulted in a judgment that the quo warranto case then pending in the district court should be dismissed, and that a writ of mandamus forth with issue directing the defendants, the county commissioners of Boise county, to order the issuing of a warrant for the amount theretofore allowed by the board for the time specified on account of fees and expenses; and that immediately upon the dismissal of the action in quo warranto a writ of mandate issue, 'commanding said commissioners to order the issuing of a warrant or warrants in the name of plaintiff herein, for the amount due him as salary for the time specified, and that a copy hereof be certified to said district court.' From this judgment Gorman appealed, but the county commissioners did not. Petitioner thereupon made this motion to dismiss, upon the ground that the requisite jurisdictional amount was not involved.

S. Shellabarger and J. M. Wilson, for appellant.

John Goode, for appellee.

Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.