#### J. M. RHODES, Treasurer, v. EDGAR LOVE.

(Filed 23 November, 1910.)

1. Office — Title—Books and Papers — Procedure—Mandamus.

An action by mandamus, brought by one claiming to be the duly elected and qualified treasurer of a graded school committee, to compel the present occupant to deliver to him the books and papers of the office alleged to be wrongfully withheld, is not the proper remedy and the action will be dismissed, when the pleadings put the title to the office at issue, and that is the real matter in controversy.

2. Same — Quo Warranto.

The title to a public office in dispute between two rival claimants must be determined by an action of quo warranto, or by an action in the nature of a quo warranto, especially when the defendant is in possession of the office under a claim of right *469in him to hold it and exercise its functions or perform its duties; and a mandamus to compel the surrender of the books and papers will not lie until the claimant has established the disputed title.

3. Office — Title—Quo Warranto — Parties.

Though the proceeding by quo warromto, or in the nature of quo warranto, may be in the name of the State upon the relation or complaint of a private party, it is personal to the parties claiming the office, and raises an issue as to the right of occupancy.

4. Office — Title — Quo Warranto — Power of Courts — Mandamus— Process.

The statutory remedy is by quo warranto to try a disputed title to a public office occupied by the defendant, and the Court trying the issue has the power to issue the writ of mandamus or other necessary and proper process to effectuate its judgment and to induct the successful contestant into the. office. The successful relator being refused the books and papers on his demand, the court may issue any appropriate process to enforce compliance with the demand by a refractory or contumacious defendant. Revisal, secs. 827, 841, 843.

5. Office — Title—Quo Warranto — Statutory Time — Accrual of Action.

Revisal, sec. 834, requiring a private relator, upon leave of the Attorney-General, to bring his action within ninety days after the induction of the defendant into the contested office, does not apply where the alleged intruder has occupied the office more than ninety days before the plaintiff’s cause of action accrued, or where it is impossible, under the circumstances, to give the required notice.

Appeal from Long, J., at chambers, 27 August, 1910, from Ieedell.

This is an action in which the plaintiff alleges that he is the duly elected and qualified treasurer of the “Lincolnton Graded School Committee,” a corporation created by Private Laws of 1895, ch. 3, as amended by Private Laws of 1907, ch. 170; that the defendant has the books, documents and papers of the said office in his possession and has refused, after demand, to deliver them to him. The plaintiff, therefore, prays that a mandamus issue to compel the defendant to comply with said demand. The defendant, in his answer, denies the material allegations of the complaint, except as to the possession of the books and papers, and especially denies that the plaintiff has been duly elected and *470qualified as treasurer of said school committee, or that he now has any right to the said office.or the books, documents or papers belonging thereto, and he avers, on the contrary, that he is the rightful incumbent of the office and entitled to exercise its functions and perform its duties and to have the possession of said books, documents and papers. The defendant moved to dismiss the action upon the ground that the plaintiff’s remedy, if he has any right to the office as alleged, is by quo warranto and not by mandamus. The court dismissed the action and the plaintiff appealed.

W. A. Self for plaintiff.

L. B. Wetmore, O. E. Childs and Bunuell & Cansler for defendant.

Waleer, J.,

after stating the case. We think the plaintiff has misconceived his remedy. It is evident, from the pleadings, that this is, in substance, an action between two contesting claimants to determine the title to an office and mandamus is not the proper proceeding in such a case. Howerton v. Tate, 66 N. C., 231; Brown v. Turner, 70 N. C., 93; Ellison v. Raleigh, 89 N. C., 125; Burke v. Commissioners, 148 N. C., 46. If an office is vacated and the rightful claimant seeks to be inducted into it by the body having jurisdiction of the matter, mandamus will lie to enforce his right, but where the controversy is between two rival claimants, the preferential right of the plaintiff must not only be clear, but it must be so adjudged in an action of quo warranto, or rather in an action in the nature of quo warranto, and especially is this true where the defendant is in possession of the office under a claim of right in him to hold it and exercise its functions or perform its duties. Although the proceeding may be in the name of the State upon the relation or complaint of a private party, it is none the less personal as to the parties claiming the office, the issue between them being the right to the same. The authorities sustaining this view are abundant. 32 Cyc., 1420, and notes. The question is expressly decided in Ellison v. Raleigh, 89 N. C., at p. 129, where this Court, citing and approving Dillon on Municipal Corporations, secs. 679 and 680, says: “A mandamus is appropriate when *471there is no usurpation by another, and the end sought is to compel those, who ought to admit and refuse to admit the person entitled by law to fill the place, to perform their duty in this behalf; and the writ may be granted, said Mr. "Willeock, ‘when quo warranto does not lie, although the oifi.ce be already full, as otherwise, in many cases, the applicant would be withoilt remedy.’ .... ‘The adjudged cases in this country agree that quo vjarranto, or an information or proceeding in the nature of a quo warranto, is the appropriate remedy, when not changed by charter or statute for an usurpation of a municipal franchise, as well as for unauthorized usurpations and intrusions into municipal officesand the author proceeds: ‘If another is commissioned and in actual discharge of the duties of the office, an adverse claimant to the office is not entitled to a mandamus, but must resort to quo warranto ’ The wrongful occupant must, however, have entered under color of authority and not be a mere usurper, in the restricted sense of that term, to put the rightful claimant to the necessity of a resort to this remedy.”

It is expressly declared by our statute (Pell’s Revisal, sec. 827) that “an action may be brought by the Attorney-General in the name of the State, upon his own information, or upon the complaint of any private party, against the parties offending, in the following cases: 1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this State, or any office in a corporation created by the authority of this State.” Referring to this provision of the law, this Court, in Ellison v. Raleigh, said further: “The statute provides in subsequent sections for the fullest relief to the rightful claimant against an unlawful intrusion, and thereby dispenses with the need of recourse to other process, unless those required to induct, still refuse to do so, after the amotion of the intruder by the judgment of the court; and then they may be compelled to proceed in the discharge of their duties. As the statutory remedy is ample, so where it can be had and made effectual, it is the only mode of deciding the conflicting claims to office by an adjudication between the contesting parties.” It was held in Lyon v. Commissioners, 120 N. C., 237, that where a plaintiff seeks the re-*472eovery of an office occupied by another or, as is sometimes said, an office that is full, bis remedy is by civil action in tbe nature of quo warranto, and tbat mandamus is recognized as a peculiarly appropriate remedy for tbe correction o'f an improper amotion from an office and to restore tbe party wbo bas been improperly ousted to tbe full enjoyment of bis franchise only when tbe office itself is vacant. Tbe particular language of tbe court is: “When a plaintiff sues for an office occupied by another, quo warranto is tbe proper remedy, as in Cloud v. Wilson, 72 N. C., 155, but when tbe office is vacant by reason of amotion, tbe remedy is mandamus, as in Doyle v. Raleigh, 89 N. C., 133, and this distinction reconciles tbe decisions.” In Moses on Mandamus (1867), p. 150, we find it stated as tbe settled rule tbat tbe writ of mandamus will not lie to 'compel tbe admission of a person to, or bis induction into, an office already filled. Tbe subject is so clearly treated in tbat standard text-book tbat we will refer to it more particularly: “A corporation bas been defined to be an intellectual body, created by law, composed of individuals united under a common name, tbe members of which succeed each other, so tbat tbe body cpn-tinues tbe same, notwithstanding tbe change of tbe individuals wbo compose it, and which, for certain purposes, is considered as a natural person; (Angell & Ames on Corporations, 1). There are two kinds or classes of corporations. One kind is denominated public, and is founded for public purposes, and generally bas for its object tbe government of a portion of tbe State, and is therefore endowed with a portion of political powers. Towns, cities and boroughs are familiar examples of this kind of corporations. A private corporation is one created for tbe advancement of some private end, such, for instance, as a bank, turnpike or railroad corporation. But as their objects, to a greater or less extent, affect tbe whole community, and they derive their existence from tbe consent of tbe public, they in a measure partake of a public nature; so much so tbat they may be compelled by mandamus to perform the duties imposed upon them by law, although it is a fundamental principle tbat mandamus only lies in a matter of public concern. . . . Tbe law upon tbe right to resort to mandamus to compel a corporation *473to admit or restore a person to an office in suck corporation is an ancient date, for in Bacon’s time it was laid down as a general rule, ‘that where a man is refused to be admitted, or wrongfully turned out of any office or franchise that concerns the public or the administration of justice, he may be admitted or restored by mandamus.’ And on this foundation it had been adjudged and admitted in a variety of cases, that if a mayor, aider-man, burgess, common councilman, freeman or other person, members of a corporation, having a franchise or freehold therein, be refused to be admitted, or being admitted, be turned out or disfranchised without just cause, he may have his remedy by writ of mandamus. But in order to warrant the issuing of the writ to admit or to restore one to an office, it must appear that the office claimed is a public office. And it has often been a matter of controversy what shall be said to be a public office. It has, however, long since been decided that a town clerk, recorder, and clerk of the peace, a constable, and even a sexton, a parish clerk, and clerk of the city works, were officers of so public a character as to come within the rule. The writ has often been made use of, in modern practice, to admit or restore to an office; and the rule, as above laid down, seems to have been unchanged.” So far he has referred to a vacant office. He then says: “But when an office is already filled by a person who has been admitted and sworn, and is in by color of right, a mandamus is never issued' to admit another person. The proper remedy for the applicant is by a quo warranto. Moses on Mandamus, pages 148, 149 and 150. In the case of Hamlin v. Digman, 41 How. Pr. (N. Y.), 132, the same rule was held to be applicable with reference to the office of collector of school taxes, who had been irregularly installed in office under a parol appointment made by the trustee of the school district, the court saying that while he was at least a de facto officer as to the public and third parties, his title to the office could be questioned when he is a party defendant and is sued for an act which he can only justify as an officer, but so far as the officer himself is concerned, a proceeding to try the right to the office between the government in its own name or on the relation of another claimant and the alleged intruder, must be quo warranto.”

*474Blit our statute, as we bave seen, prescribes tbe remedy of quo warranto to test tbe validity of tbe title of any person wbo is alleged to bave usurped, intruded into, or to unlawfully bold or exercise tbe functions of any public office or any franebise or any office in a corporation created by tbe authority of tbe state. Pell’s Revisal, sec. 827. It also provides that in any sucb action brought to try tbe title to, or right to bold, an office, tbe court shall bave tbe power to issue a writ of mandamus or any other process which may be necessary and proper to carry its judgment into effect and'to induct tbe successful contestant into tbe office (sec. 841), and that tbe relator, if be recovers and when be has been qualified, as provided by law, to take upon himself tbe execution of tbe office, shall demand of tbe intruder all tbe books and papers in bis custody or within bis power, which belong to tbe office from which tbe plaintiff bad been excluded by him. (Sec. 843). Tbe court can, of course, issue any appropriate process to enforce compliance with sucb demand by a refractory or contumacious defendant. So it appears that our case comes directly within tbe terms of tbe statute, as well as tbe general principles of tbe law, to which we bave referred.

Tbe provisions of section 834, that tbe action shall be brought within ninety days after tbe induction of tbe defendant into tbe office, manifestly does not apply to a ease like this one, where the alleged intruder has occupied tbe office more than ninety days before tbe plaintiff’s cause of action accrued. Tbe law does not require an impossibility and it will not, therefore, bar a right to sue, by the lapse of time, upon a cause of action which did not come into existence until after tbe time bad expired. No laches can be imputed in sucb a ease. Revisal, sec. 360; Coomer v. Little, 3 N. C. (Conf. Rep.), 223; Godley v. Taylor, 14 N. C., 178; Commissioners v. MacRae, 89 N. C., 95; 1 Womack’s Digest, No. 3063, and cases cited.

This action was properly dismissed. Tbe plaintiff, upon proper application to tbe Attorney-General and compliance with tbe law in other respects, can, with bis consent, obtain relief, if entitled to it, in tbe mode prescribed by tbe statute.

We direct attention to tbe fact that there are imperfections in the act providing for tbe appointment of a treasurer for tbe *475school committee and even tbe election of tbe members of that committee, to tbe end that they may be corrected by further legislation, if deemed advisable.

Affirmed.