I dissent from the opinion of the court, and the importance of questions involved impels me to state my reasons for dissenting. The plaintiff instituted this action under the provisions of section 2781-2797, Rev. Code of 1919, as amended by chapter 289, Session Laws of 1919, which provide that the remedies formerly obtainable by writ of quo warranto and proceedings in the nature of quo warranto may be obtained by civil action under the provisions of these sections, to determine his right or title to the office of city commissioner. The source of these provisions is found in sections 347-364 of the Code of Civil Procedure adopted by the Territorial Legislature of 1867-68. This territorial Code was founded upon the Code of Civil Procedure of the state of New York.
Sections 2787, 2788, 2789, and 2792, are identical with the original enactment. Section 2788 reads as follows: "ClaimantTakes Office, When. If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office; and it shall be his duty *Page 138 immedately thereafter, to demand of the defendant in the action all the books and papers in his custody, or within his control, belonging to the office from which he shall have been excluded."
The court in Welch v. Cook, 7 How. Prac. (N.Y.) 282, construed the effect of sections 437, 438, and 441, Code of Civil Procedure (our sections 2788, 2789 and 2792). Therein the court said: "The counsel for Mr. Cook insists that the judgment has no such effect; that it only establishes the fact that Cook is not entitled to the office, and that Welch is; and that the judgment must be executed by some process or mandate of the court before Cook is ousted or Welch put in. This is an important question in the case, as will be seen when we come to consider the effect of the appeal from the judgment. * * * The statute therefore is, if judgment be rendered upon the right of the party, , he shall be entitled, upon taking the oath and executing the bond, to take upon himself the execution of the office, and it makes it his duty immediately thereafter to demand of the defendant the books and papers belonging to the office from which he shall have been excluded. From which he shall have been excluded by what? The statute itself furnishes the answer; for it speaks of nothing but the rendition of the judgment, and gives to the party entitled to the office, upon the rendition of the judgment, the right at once to take upon himself the execution of the office, on taking oath and filing his bond. This view of the statute is greatly strengthened by the omission of the legislature to provide for any process upon the judgment, or other proceeding to remove the usurper and install the party entitled."
The holding in Welch v. Cook, supra, was followed in People v. Conover, 6 Abb. Prac. (N.Y.) 220. The Court of Appeals of New York in McVeany v. Mayor, et al, 80 N.Y. 185, 36 Am. Rep. 600, reaffirmed the holdings in the Welch and Conover Cases. This was an action to recover the salary of the office of assistant alderman. The plaintiff introduced in evidence the judgment roll in an action brought on his relation in the nature of a quo warranto against one Peter Culkin, which adjudged McVeany entitled to the office. Therein the court said: "He did not move the courts to aid him in getting the actual possession of his seat on the board. It did not need, so far as Culkin was concerned, that he should. The rendition of a regular judgment of ouster, against an intruder *Page 139 into a public office, actually puts him out of the office and excludes him therefrom, and the person adjudged entitled to it, upon taking the oath of office and giving bonds if any are required by law, becomes eo instanti invested with the office. (Welch v. Cook, 7 How. Prac. 262; People v. Conover, 6 Abb. Prac. 220.) There is no provision, either in the Revised Statutes or in the Codes, for the issuing of any process, or taking any other proceeding upon the judgment, to remove the usurper from office and place the party entitled thereto in possession; and none is required."
When a judgment in quo warranto is rendered against an incumbent and in favor of the plaintiff, the latter is invested with the office by force of statute. Section 2788, Rev. Code of 1919, imposes no other condition than the rendition of the judgment upon his right to qualify for the office. This right is not withheld by reason of the provisions of section 2101, Rev. Code 1919, which provides that an action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied. Section 2560, Rev. Code of 1919, provides: "Judgment, What Constitutes. The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and the verdict or decision. It becomes a complete and effective judgment when reduced to writing, signed by the court, attested by the clerk and filed in his office."
Manifestly a reasonable construction of sections 2560 and 2101, when they are construed together, would not permit of the interpretation that the effect of a judgment is suspended until final determination upon appeal or the expiration of the statutory period for appeal. An appeal from a judgment suspends its force as a conclusive determination of the rights of the parties, and a stay of proceedings consequent upon appeal, if the judgment is of a nature to be actively enforced by execution or otherwise, is limited to the enforcement of the judgment, and does not delay or impair its character. Dulin v. Pacific Wood Coal Co., 98 Cal. 304, 33 P. 123.
"It is an invincible presumption of the law that a judicial tribunal, acting within its jurisdiction, has acted impartially and honestly, and the integrity and value of the judicial system, as an *Page 140 institution for the administration of public and private justice, rests largely upon this principle. Akin to this principle is the important one that a presumption lies in favor of the integrity of the proceedings of any court of general jurisdiction. When such a court acts within its jurisdiction every presumption is in favor of its judgment." 15 R.C.L. 875, 876.
Justification for the enactment of the provisions of statute making the rendition of a judgment of the circuit court operative as an ouster from office, without speculating upon the possibility of a reversal, could be readily advanced upon grounds of expediency and public policy. The policy of legislation, however, is not our concern. It is for the Legislature to enact a law, and the function of the courts is to give effect thereto if it contravenes no constitutional provision.
In Fylpaa v. Brown County, 6 S.D. 635, 62 N.W. 962, 963, this court considered the effect of a judgment rendered in an election contest, which is akin to a judgment in quo warranto, upon the right of recovery of salary after entry of such judgment. In discussing the question, Judge Fuller, speaking for the court, said: "A final judgment of a court of general and competent jurisdiction is always presumed to be right, and when the only question involved in a suit and determined by the court is the right to hold an office, its judgment is self-executing, except so far as the question of costs is concerned, and its force and effect is neither stayed, suspended, nor obstructed by an appeal therefrom. Plaintiff was entitled to hold the office, perform the duties, and receive the emoluments thereof as soon as Raymond's certificate issued by the board of county commissioners was nullified by the judgment, and ceased to be prima facie evidence of an election, and it immediately became his duty to turn over the office on demand, as soon as plaintiff had taken the oath of office and filed the bond required by statute."
Concisely stated, the court held that a person who receives a certificate of election to an office of which he gets possession ceases to be an officer de facto from the time of judgment of ouster, except in respect to the rights of third persons who deal with him in his assumed official capacity. It is pointed out that no further proceeding or writ is necessary to put the officer de jure into legal *Page 141 possession of the office, and a payment by the county to the de dacto officer, after notice or knowledge of the judgment of ouster, does not protect the county from the payment of salary to the officer de jure. It was the defense of the county that compensation is always incident to occupancy, and that a county is not placed in peril of paying a salary a second time and deciding who is legally entitled thereto.
The following authorities are in point and sustain the view that a judgment in quo warranto proceedings is self-executing; Foster v. Kansas, 112 U.S. 201, 5 S.Ct. 8, 28 L.Ed. 629; People v. Stephenson, 98 Mich. 218, 57 N.W. 115; People v. Reinberg,263 Ill. 536, 105 N.E. 715, L.R.A. 1915E, 401, Ann. Cas. 1915C, 343; Allen v. Robinson, 17 Minn. 112 (Gil. 90); Caldwell v. Wilson,121 N.C. 480, 28 S.E. 554, 61 Am. St. Rep. 672; Fawcett v. Sup. Court, 15 Wn. 342, 46 P. 389, 55 Am. St. Rep. 894; State ex rel Lewis v. Marion County Commissioners, 14 Ohio St. 515.
The Supreme Court of Oklahoma appears to have adopted a contrary rule. In Palmer v. Harris, 23 Okla. 500, 101 P. 852, 855, 138 Am. St. Rep. 822, the court, alluding to a prior decision adopting such rule, makes this comment: "There can be no doubt that the order of the trial court staying the judgment to the extent that it stays the execution for costs, is within the rule in Re Epley, but it is urged by plaintiff that said judgment of ouster, to the extent that it declares him to be the duly elected commissioner and ousts defendant, is self-executing, and cannot be stayed. The Supreme Court of the territory, in announcing the doctrine in Re Epley, supra, that in all cases where the statute makes no provision for a supersedeas or stay of judgment, the trial court may, in the exercise of its discretion, allow a supersedeas or stay, followed and adopted the rule of the Supreme Court of Nebraska. The Supreme Court of that state in following this rule has recognized no distinction in the application thereof between judgments that are self-executing and those that are not self-executing. * * * The writer of this opinion, however, cannot say, after a careful investigation of the authorities, that he is not impressed that the better reasoning and the weight of authorities is to the effect that self-executing judgments cannot be stayed unless especially authorized by statute. But, as before stated, the rule adopted by the Supreme Court of *Page 142 the territory in Re Epley, following the rule of the Nebraska court, authorizes the trial courts in their discretion to allow a supersedeas in any case. We do not feel that we would be justified in disturbing the rule of practice which the observance of the rule of that case by both the bench and bar in this jurisdiction for the past 8 years has established."
The law of this state has been settled and determined to the effect that a judgment which is self-executing cannot be suspended pending appeal. Flypaa v. Brown County, supra; Mee v. Hirning et al, 45 S.D. 303, 187 N.W. 540; State v. Carlson,37 S.D. 231, 157 N.W. 657. The weight of authority is to this effect; a judgment which is of a nature not to be actively enforced by execution or otherwise, but is self-executing, is not within statutes similar to those in force in this state, as there is nothing upon which a stay can operate in such case. See 3 Corpus Juris, "Appeal and Error," § 1400, and cases there cited.
Section 3158, Rev. Code 1919, under which appellant contends that the trial court should have granted a stay of proceedings, was not designed to reverse, suspend, modify, or impair the judgment, but merely to stay its enforcement pending an appeal. I am of the view that the trial court correctly ruled that he was without authority to fix the amount of an undertaking for the purpose of staying the effect of the judgment.
It is contended by counsel for the appellant that, if the trial court was without authority to grant the application, this court possesses inherent power to preserve the status quo of the proceedings pending appeal, although no statutory provision is made for stay or suspension of judgment by this court. I have no doubt that in a proper case this court, in aid of and to preserve its appellate power, has an inherent power to order a stay of proceedings in the trial court touching any matter of appeal upon such terms as this court may prescribe. However, in the instant case there are no proceedings to be stayed if effect is to be given to the positive provisions of statute. The rendition of the judgment constituted an ouster, and gave the right to the plaintiff to qualify for the office.
The only question involved in this proceeding is the right or title to a public office. It is well settled that an office is not the *Page 143 property of the incumbent, but is a public trust, not held by contract, and to or in which the officer has no vested right. Conceding that the inherent power of this court in a proper case extends beyond the stay of the enforcement of a judgment in preserving the status quo of the parties, the facts here presented do not call for the exercise of such extraordinary power. No showing is made that action by this court to enjoin the plaintiff from performing the duties of the office is necessary to avert some threatened injury to the public. As between the parties to this action there is no sufficient showing in my opinion, if such inherent power exists in this court and upon the assumption that the application is within the scope and purpose of relief to preserve the status quo, requiring or permitting its exercise with respect to the occupancy of a public office, in view of the clear and positive declaration of the Legislature upon the effect of a judgment in quo warranto. Under the statutes of this state and the rule announced in the Fylpaa Case, the judgment in the instant case clearly effects an ouster from office, and it is doubtful, to say the least, whether the vesting of the defendant with the duties of the office pending appeal constitutes the exercise of a power to preserve the status quo of the parties. Schmalz v. Scully, 49 S.D. 424, 207 N.W. 221.
Counsel for the appellant also contends that relief may and should be granted under the general superintending control of this court over inferior courts. The scope and extent of section 2, art. 5, State Constitution, vesting such power in this court, are comprehensive. It is clearly apparent that the exercise of such power is vested in this court for the purpose of controlling the course of litigation in inferior courts, but only under extraordinary circumstances where a party litigant, by some wrong committed by the court, will suffer irreparable injury. In City of Huron v. Campbell, 3 S.D. 309, 53 N.W. 182, 184, referring to this constitutional provision, this court said: "This provision materially enlarges the powers of otherwise only appellate courts, and enables them, by means of their various writs, prerogative and remedial, to control and correct the decisions of inferior courts in special cases, and prevent injustice and irreparable injury. When the circumstances demand an immediate review, the case is urgent, and an appeal will not afford an adequate remedy." *Page 144
The superintending power has not been invoked by the application before us. Without regard to the question of instrumentalities or forms for its exercise, the granting of the application does not operate to correct an error of the trial court or to command such court to perform its duty, and consequently does not constitute a superintending control over that court.
The application should be denied.