State v. Sherwood.

terms of the conveyance or by an implication of law in reference to streets in the city of New York.

It is also to be observed that a somewhat peculiar legal character is impressed by statute upon streets in a large portion of that city. Matter of 17th street, 1 Wend. 270; Maiter of Lewis street, 2 id. 475.

For these reasons we are of opinion that the complaint does not state facts entitling the plaintiff to the relief sought, and the order overruling the demurrer is accordingly reversed.

Reversed.

STATE ex rel. ATHERTON V. SHERWOOD.

(15 Minn. 221.)

Election-Certificate of, prima facie evidnece - Mandamus.

The relator received from the proper officer a certificate of his election to the office of district clerk of M. county; he subsequently took the oath, gave and filed the bond required by law, and then demanded of the respondentthe former clerk, whose term of office had expired, and who was in possession-the seal, records, books, papers, etc., belonging to said office. The respondent answered that the relator, being a non-resident of the state, was ineligible to the office, and therefore not legally elected. Held, that the relator was entitled to a mandamus.

A certificate of election is prima facie evidence of title, and the court will not go behind it in proceedings for a mandamus.

THE following decision was rendered on the return of an alternative writ of mandamus. The facts are stated in the opinion:

Allis, Gilfillan & Williams, for relator.

George E. Cole, for respondent.

RIPLEY, C. J. The alternative writ in this case recites, that at the last general election the relator, a citizen of the United States, of full age and residing in Austin, in Mower county, was elected to the office of clerk of the district court of said county, and upon the official canvass of votes received a certificate of such election

State v. Sherwood.

under the hand and official seal of the county auditor, and thereafter, on the 30th day of December, 1869, took the oath and gave the bond required by law, and, on the 4th day of January, 1870, filed the same in the office of the register of deeds; that on the 5th day of said month, at the office of the clerk of said court, he demanded of the respondent, who was his predecessor, and whose term of office had expired, the seal, records, books, papers, and all other things whatsoever belonging to said office, and then in respondent's possession, who refused to deliver the same to him.

The writ requires the respondent to deliver them, or show cause to the contrary.

On the return of the writ, the respondent moved to quash it, because it does not allege that there was any clerk to be chosen at such election, or that relator received a majority of the votes cast, or that he was eligible, as having resided in the state and county for the time required, previous to said election; in other words, that it does not show a title in the relator to the relief demanded.

The statute requires the writ to state concisely the facts, showing the obligation of the defendant to perform the act. Rev. Stat., chap. 80, title 1, sec. 4. This is but the converse of the rule at common law, that the writ must show a clear right to the relief demanded. The relief demanded is the delivery of the seal, records, etc., appertaining to the office of clerk. Do the facts alleged in this writ sufficiently show a clear right in the relator to such relief? Although loosely drawn, it sufficiently appears from it that the relator holds a certificate from the proper officer, of his election, at the last general election, to the office of clerk of the district court; that he has duly qualified; that the respondent, who was his predecessor in said office, and whose term of office has expired, is in possession of the articles demanded, and refuses, though requested, to deliver them to the relator.

These allegations bring the case within the scope of the decision in Crowell v. Lambert, 10 Minn. 369, for they show the relator to hold a certificate of election to the office, to have duly qualified himself for the exercise of the duties, and that the respondent has no right whatever to the possession of the articles demanded.

It is true that the writ does not state for what term the election was had, but the presumption is that it was legally held, and also, as the term of office is fixed by the constitution at four years, and not until a successor is elected and qualified, and as the respondent

State v. Sherwood.

is alleged to have been the predecessor of the relator in such office, and that such preceding term had expired, that it was for the regular term commencing January 1, 1870. Const. art. 6, sec. 13; Rev. Stat. chap. 1, sec. 1. The motion to quash must therefore be denied. The answer alleges that, on the second day of December, 1869, there was a vacancy in the office of clerk; that on that day the respondent was duly appointed by the judge of said court to fill such vacancy, and hold and exercise the duties of such office till his successor should be elected and qualified; that he has duly qualified under such appointment, and still holds and exercises the duties of said office thereunder, and that no successor has been elected or qualified; that relator was at the time of said election and still is a citizen of Michigan, and had not resided in this state and said county for the required time previous to said election, and therefore was not eligible to, nor entitled to hold, said office.

The possession by respondent of the articles demanded, and the demand and refusal, are admitted. The expiration of respondent's term of office is denied, and. as to every other allegation in the writ, any knowledge or information sufficient to form a belief.

The answer further alleges that witnesses material to maintain the issues therein tendered reside in Michigan; that no adequate means are provided by law whereby said issue can be tried in this court, and that he is entitled to a trial thereof by jury, which cannot be had in this court.

Upon filing this answer, the relator moved to strike out all the allegations of new matter therein as irrelevant, and the denial on information and belief as sham.

The respondent also moved to dismiss the proceedings, upon the ground that the issues tendered by the answer were material; that he was entitled to a trial by jury therein, which could not be had in this court, nor any process or means by which he could obtain testimony from without the state.

The issue tendered is whether or not the relator was eligible.

From what has been already said, it follows that this issue would be immaterial but for the alleged appointment of respondent, as it would still leave the relator holding the certificate of election, and duly qualified, and the respondent in possession without right. Does the fact that he has been appointed to hold till a successor is elected and qualified make it a material issue? The respondent claims that Crowell v. Lambert was decided upon the peculiar cir

State v. Sherwood.

cumstances of the case showing a vacancy in the office de jure, antil Lambert's successor was inducted, and is not to be extended beyond them. The decision in that case is that the person holding the certificate is, under those circumstances, prima facie, the officer, and therefore prima facie entitled to the insignia and records of the office.

If, in this proceeding, we are to go behind the certificate of election and try the title of the relator to the office, that case does not govern this, and the eligibility of Atherton is a material issue, otherwise not.

The correct rule seems to be that mandamus does not lie to try and finally determine the title to an office, except perhaps in a case in which the law has provided no other means of doing so. People v. Stevens, 5 Hill, 616, 628; People v. Head, 25 Ill. 325; King v. Mayor of Colchester, 27 R. 259; Angell & Ames on Corp., § 738, and cases cited in note.

Our statutes have not changed the rule in this respect. They contain nothing from which an intention to enlarge or change the issue to be tried can be inferred, and though the writ of quo warranto, which is the adequate and specific remedy to try title, should be held to have been abolished, other and very adequate provisions. are made for the full and speedy trial and determination of questions as to title to office. Rev. Stat., chap. 79, § 3.

It would seem, then, to be immaterial in this proceeding whether or not the relator was eligible, or was duly elected to the office, for to try either issue would be to try the title. Cole on Crim. Inf. and Quo Warranto; 31 Law Library, chap. 3, pp. 105, 107.

What then remains on these pleadings which is material to be tried? As we are not to go behind the certificate of election, we are only to determine whether or not the relator has received the certificate of election, and has given the bond, and taken the oath required by law. If so, he is, prima facie, the "successor, elected and qualified," of the respondent, and, as such, entitled to the possession of the articles demanded, until, in a proper proceeding for that purpose, his title to the office shall have been tried and found defective.

In other words, a prima facie title to an office gives a right to the possession of the insignia and furniture thereof, and the records and other books and papers appertaining thereto.

But, it is said, that as mandamus will not lie to admit one to an

State v. Sherwood

office which is full, of one holding under color of right, but the claimant must resort to his proceeding in the nature of quo warranto, and, as this office is thus full, this writ must be dismissed.

But the reason of the rule is, that a mandamus to admit runs to others than the incumbent, and they are required to oust him, and thus his rights are sought to be passed upon in a proceeding to which he is not a party. But this is not the case. The respondent's title to hold till his successor is elected and qualified is not in question.

If the view we have taken is correct, the relator, if he has a certificate and has qualified, is, prima facie, the clerk. He presents himself with all the evidence which the law has provided that he is the respondent's successor in office, elected and qualified. It is not for the latter to demand any other, or further evidence, before delivery of the insignia of the office, and the necessary means and implements for the exercise of its duties. If he may, why may he not also prescribe its character, and decide on its sufficiency? While we have found no case in which the title to an office has been tried on a mandamus brought for similar, or analogous relief, the precise question raised here was raised and decided in the case of The People v. Head, 25 Ill. 325, cited in Crowell v. Lambert, but even more entirely coincident in the question involved with this. The petition in that case recited that the relator held a certificate of his election as clerk of the county court of McDonough county; that he had subsequently received his commission from the governor, and had qualified; that the former clerk, whose term of office had expired, was in possession of the records, furniture, and key of the office, and refused to deliver them, and prayed a mandamus to compel their delivery to the relator.

The answer alleged, that respondent held his office by law till his successor was elected and qualified; that he was a candidate for re-election, and received a majority of the legal votes, and was actually contesting the election in the circuit court, and that in the mean time he was entitled to possession, and prayed that the court would dismiss the writ, or make up an issue whether relator or he were duly elected, and send it to be tried in the circuit court. The court say that upon the receiving the certificate of election, and taking the oath of office, and giving bond, the relator was as much entitled to take possession of the office as he ever could be.

Who, they ask, shall say, without law, that the party who pos