{
  "id": 11269174,
  "name": "STATE ex rel. J. L. BURKE, Treasurer, v. COMMISSIONERS OF BESSEMER CITY",
  "name_abbreviation": "State ex rel. Burke v. Commissioners of Bessemer City",
  "decision_date": "1908-05-25",
  "docket_number": "",
  "first_page": "46",
  "last_page": "48",
  "citations": [
    {
      "type": "official",
      "cite": "148 N.C. 46"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "139 N. C., 419",
      "category": "reporters:state",
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      "cite": "135 N. C., 38",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "117 N. C., 117",
      "category": "reporters:state",
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      "category": "reporters:state",
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    {
      "cite": "66 N. C., 231",
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        11276875
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    {
      "cite": "70 N. C., 93",
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      "reporter": "N.C.",
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      "case_paths": [
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    {
      "cite": "89 N. C., 125",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8682890
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      "case_paths": [
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  "analysis": {
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  "last_updated": "2023-07-14T19:55:17.237307+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE ex rel. J. L. BURKE, Treasurer, v. COMMISSIONERS OF BESSEMER CITY."
    ],
    "opinions": [
      {
        "text": "OlaeK, 0. J.\nThis is a mandamus to compel the town commissioners of Bessemer to reinstate the relator in the office of town treasurer, from which he had been removed by them, and to approve the bond tendered by him. The court, without passing upon the prayer to compel reinstatement, ordered the defendants to \u201caccept and approve\u201d the bond tendered.\nThe facts of this controversy are set out in the quo war-ranto proceedings \u2014 Burke v. Jenkins, ante, 25 (which are hereby referred to and made a part of this case), in which it was adjudged that the relator was not entitled to recover said office. This proceeding, therefore, has no longer any purpose. It is proper to observe, however:\n1. That title to office cannot be determined upon a mandamus. Ellison v. Raleigh, 89 N. C., 125; Brown v. Turner, 70 N. C., 93; Howerton v. Tate, 66 N. C., 231.\n2. That, unless the title to the office is uncontested or has been adjudged on a quo warranto, a mandamus cannot issue as to the bond,' and even then it cannot require the defendants to \u201caccept and approve\u201d the bond. It can only require them to act, not compel their judgment, because they are individually liable if they take a bond known, or which should be known, by them to be insufficient. Buckman v. Commissioners, 80 N. C., 121; Harrington v. King, 117 N. C., 117; Barnes v. Commissioners, 135 N. C., 38; Glenn v. Commissioners, 139 N. C., 419. A judgment for plaintiff on a quo warranto compels his admission to office. The mandamus lies to compel the consideration of the bond then tendered by him, not its acceptance. Should it be factiously rejected, that matter can be shown in proceedings for mandamus, and possibly by action for damages against the factious board. In the meantime the officer is in office by virtue of the judgment, and can be again ousted only upon application to the court to revoke its judgment of induction for bis failure to tender a proper bond. Tbe judgment herein was premature and unauthorized. 1\nBeversed.",
        "type": "majority",
        "author": "OlaeK, 0. J."
      }
    ],
    "attorneys": [
      "G. B. Whitney and 8, J. Durham for plaintiff.",
      "Burwell & Gamier and A. Q. Mcmgum for defendants."
    ],
    "corrections": "",
    "head_matter": "STATE ex rel. J. L. BURKE, Treasurer, v. COMMISSIONERS OF BESSEMER CITY.\n(Filed 25 May, 1908.)\n1. Title to Office \u2014 Procedure\u2014Mandamus.\nTitle to office cannot be determined by mandamus.\n2. Mandamus \u2014 Town Commissioners \u2014 Bond, Acceptance and Approval \u2014 Ministerial Duties.\nA mandamus will only lie against the town commissioners to compel the consideration of a bond offered by the town treasurer, and not to compel them to accept and approve it, the commissioners being individually liable in taking one which they knew or should have known was insufficient.\n3. Quo Warranto \u2014 Officer Inducted \u2014 Tender of Bond \u2014 Judgment Revoked \u2014 Procedure.\nWhen an officer is in office by virtue of a judgment in quo war-ranto proceedings, and it is contended that he has not tendered a proper bond, he cannot be ousted, except when, upon application to the court, the judgment of induction is revoked for his failure to do so.\nAotioN heard by consent by Ferguson, J., at chambers in Charlotte, 27 September, 1907, from GastoN.\nDefendants appealed.\nG. B. Whitney and 8, J. Durham for plaintiff.\nBurwell & Gamier and A. Q. Mcmgum for defendants."
  },
  "file_name": "0046-01",
  "first_page_order": 76,
  "last_page_order": 78
}