procedure for rate fixing relates entirely to "municipally owned plants." If the purpose of the act had been to give the railroad commissioners a general power to fix rates, then there was no occasion for using the limiting term "municipally owned plants." However that may be, it is certain this is not a rate fixing case, and hence chap. 208 has no application.

The questions are: Had the city power to grant the charter? Had the plaintiff and his grantor power to accept the grant and to make a special written contract to observe the conditions of the same? May the gas company accept the benefits of the grant and repudiate its obligations? There is no claim that either the plaintiff or its grantor were induced to accept the grant and its obligations by any fraud or deception, or that the terms and conditions of the grant as they existed at the time were in any way unfair or unjust. There is no averment or showing that the grant has not been a source of profit to the plaintiff; no claim that the city was under any obligation to grant the char

And if the city was free to grant or refuse the charter, it must have been free to prescribe the terms and conditions of the same. And the gas company and the grantor must have been free to accept or to refuse the grant. There was no compulsion, but assuredly the company was not free to accept the grant and its benefits and to repudiate its conditions. The city must have a right to insist that the company shall observe the conditions or that the charter shall be forfeited. That is plain common sense. If the company insists on holding its grant and fails to observe its conditions, that is a gross wrong for which the city has a constitutional right to a remedy by due process of law.

The plaintiff cites several cases holding that the courts have no jurisdiction to fix rates, but the question presented is not one of rate fixing. The question is: May the gas company or any party accept a grant of a charter and avail itself of the benefits and repudiate its conditions and obligations? May it accept from the city a valuable charter, fixing a maximum rate for gas, and then turn around and charge twice the maximum rate? And in such a case shall we say the city may not invoke the courts to forfeit the charter or to enforce its conditions? Assuredly it is a familiar rule of law that a grant upon condition may be forfeited for a failure to observe its conditions.

But if the question presented be merely one of contract, then clearly

1

it was competent for the city in granting a franchise to protect itself and the people of the city by contracting for maximum rates. That is in accordance with a well-reasoned decision by Judge Amidon in a Moorhead case. He says: "Here there has been no reduction by the city of the franchise rates. It simply stands upon its contract and asks protection against the rates being raised by the company. The party changing the franchise rates is not the city, but the public utility company, and the city is only asking the court to compel the company to perform its contract and furnish gas at the rates for which the company has agreed to be bound by." He cites many authorities showing that neither at law nor in equity is a party relieved from a contract by reason of the fact that performance becomes unprofitable. He says of contracts free from mistake, fraud, or imposition, that parties must be left free to make their own contracts, and it is the duty of the courts to enforce them as made. And this applies to contracts between municipalities and public utility companies. While Judge Amidon cites many authorities to sustain his decision, which is manifestly sound and in accordance with elementary principles, there is no reason for magnifying this case by any review of the authorities. It turns upon plain elementary principles, as above stated. The alternative writ was improvidently issued, and the case must be dismissed, with costs.

GRACE, J. I concur in the result.

STATE OF NORTH DAKOTA EX REL. WILLIAM LANGER, Attorney General, Plaintiff, v. N. C. McDONALD, Defendant.

Elections

(170 N. W. 873.)

mandamus-original jurisdiction of supreme court.

1. The original jurisdiction of the supreme court may properly be invoked in a mandamus proceeding involving the right of possession of the office of superintendent of public instruction.

Elections-public officers

surrender of office enforceable by mandamus. 2. It is the duty of every public officer, at the expiration of his official relation, to surrender to his successor the property and insignia of the office which

NOTE.-On original jurisdiction of court of last resort in mandamus cases, see notes in 58 L.R.A. 833, and 38 L.R.A. (N.S.) 1000.

the law commits to his custody. This duty is ministerial only, and its performance is enforceable by mandamus.

Elections-certificate prima facie title to office court will not go behind certificate.

3. The certificate of election to the office in dispute and qualification thereunder is prima facie title to the office, and the courts will not in a mandamus proceeding to compel surrender of the office to the holder of the certificate of election go behind such certificate.

Elections

-in mandamus to get possession of office facts involving right to hold office not considered.

4. In such mandamus proceeding, the prima facie title to the office cannot be defeated by averments of fact which involve the ultimate title to the office.

Opinion filed January 10, 1919.

Original proceeding by the state, on the relation of William Langer, Attorney General, for the issuance of writ of mandamus to compel the defendant, N. C. McDonald, to surrender the office of superintendent of public instruction to Minnie J. Nielsen.

Writ granted.

William Langer, Attorney General, and Edw. B. Cox, Assistant Attorney General, for relator.

John Carmody, J. A. Hyland, and Edward S. Allen, for respondent.

PER CURIAM. Application is made to this court for an original writ of mandamus to compel the defendant, N. C. McDonald, to turn over to one Minnie J. Nielsen the possession of the office of superintendent of public instruction of the state of North Dakota.

The controlling facts are undisputed. The defendant McDonald was elected to the office of superintendent of public instruction at the general election held in November, 1916. His term of office ended on January 5, 1919. The defendant and said Minnie J. Nielsen were opposing candidates for the office involved in this controversy at the election in November, 1918, with the result that said Minnie J. Nielsen received more votes than the defendant. On December 9, 1918, the state board of canvassers issued a certificate of election declaring said Minnie J. Nielsen to have been duly elected to the office o tendent of public instruction of North Dakota. On January 6, 1919, she qualified by taking the oath of office and filing the bond provided by law, but the defendant refused to surrender the office.

The defendant contends:

1. That the case does not warrant the exercise of the original jurisdiction of this court;

2. That there is a plain, speedy, and adequate remedy by action in the nature of quo warranto, and hence mandamus will not lie;

3. That said Minnie J. Nielsen did not have or hold the educational certificate prescribed by the statute.

We will consider these propositions in the order stated.

(1) So far as the question of jurisdiction is concerned, the case falls squarely within the rule announced by this court in State ex rel. Moore v. Archibald, 5 N. D. 359, 66 N. W. 234. That decision, as well as the subsequent decisions of this court, not only sustains the right, but makes it the duty, of this court to exercise its original jurisdiction in the instant case. See also State ex rel. Linde v. Taylor, 33 N. D. 76, L.R.A. 1918B, 156, 156 N. W. 561, Ann. Cas. 1918A, 583.

(2) The second point raised was elaborately discussed, and ruled against defendant's contention, in State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025. In that case it was held that where an incumbent is holding over after the expiration of his term, and until a successor is elected and qualified, and has no other claim to the office, he is a mere intruder as against a candidate who holds the proper cer tificate of election and has qualified for the office in the manner and form prescribed by law. The rule announced in State ex rel. Butler v. Callahan is in harmony with the principles of justice and common sense, and meets with our entire approval.

"It is the duty of every public officer, at the expiration of his official relation, to surrender to his successor the property and insignia of the office which the law commits to his custody. This duty is ministerial merely, no matter on what officer it devolves, and at common law its performance is enforceable by mandamus. The right of the incumbent of an office to hold over after the expiration of his term exists only in cases where there is no legally elected and qualified successor, and therefore when there is a duly elected and qualified successor, the incumbent can have no such color or claim of right to the office as will prevent mandamus from issuing to compel him to surrender the insignia, etc., of the office. The commission or certificate of election to the office in dispute and qualification thereunder is prima

facie title to the office, and the courts will not in a mandamus proceeding to compel the surrender of the office to the holder go behind the commission or certificate." 18 R. C. L. pp. 261, 262, § 186. See also 8457, Compiled Laws 1913; State ex rel. Moore v. Archibald, supra; Chandler v. Starling, 19 N. D. 144, 122 N. W. 198. "A prima facie right or title on the part of the relator to the office is all that is necessary, or in fact involved, in mandamus proceedings to compel the surrender of insignia, etc., of the office." 18 R. C. L. p. 263, § 188.

(3) The third point was specifically ruled against defendant's contention in State ex rel. Butler v. Callahan, supra. That case involved the office of county superintendent. The defendant in his answer admitted that the relator had received a certificate of election, and had qualified thereunder by taking the oath of office and giving the required bond; but averred, as new matter, that the relator did not have or hold the educational certificate prescribed by the statute. The court ruled that such new matter did not constitute a defense; that the new matter in the answer had reference only to the relator's ultimate title to the office; and that such title could not be litigated in a mandamus proceeding. The court further held that in such mandamus proceeding "the relator cannot be driven out of court by the mere fact that the incumbent pleads facts in his answer which call for a determination of the relator's ultimate title to the office, and only that title."

"When a commission or certificate of election has been issued to another, who has qualified thereunder, it is the duty of an incumbent of a public office, at the expiration of his term, to surrender the office to his successor; and should he then desire to contest the eligibility, election, or qualification of the person so holding the commission or certificate, he may do so by proceeding in the manner prescribed by law for determining contested claims to office, but he cannot do so in mandamus proceedings to compel the surrender of the office." 18 R. C. L. p. 263, $ 189.

It follows from what has been said that a writ of mandamus must issue as prayed for. It is so ordered.

BRONSON, J., deeming himself disqualified, did not participate, Honorable W. L. Nuessle, Judge of Sixth Judicial District, sitting in his stead.