6 Whart. 476 | Pa. | 1841
delivered the opinion of the court.
The object of the application for a mandamus in this case, is to compel the commissioners of the county to file in their office a certificate of the affirmation made by the applicant as an assessor duly elected for Pine Ward. The applicant, though duly elected, as it seems, did not produce to the commissioners, as required by the 88th section of the act of the 15th of April, 1834, within twenty days after his election, a copy of the oath or affirmation prescribed by the same act to be taken by him before entering on the duties of his office, so that the commissioners might file it in théir office as thereby directed. Such oath or affirmation it appears was neither taken nor offered to the commissioners, until three or four days after the expiration of the twenty days; when the commissioners during the interval that had taken place between the expiration of the twenty days and the time of taking and tendering the copy of the affirmation taken by the applicant, had under the 87th section of the same act, appointed another person assessor for Pine Ward, who’ had taken the requisite oath or affirmation, filed a copy thereof with the commissioners, and entered upon the discharge of the duties of the office. This induced the commissioners to decline taking the copy of the affirmation offered to them by the applicant for the purpose of being filed in their office. The section under which the commissioners made the appointment, provides, that if any person elected to such office, (meaning that of assessor) shall neglect or refuse to serve therein, &c., the commissioners of the county shall appoint a fit person to fill the office, who shall have the same powers, be subject to the same penalties, and receive the same compensation, as if he had been elected in the manner therein before directed. Now it is obvious, that unless the filing of the copy of the affirmation made by the applicant, would be of some avail to him, it would be idle in the court to grant it. It is not our intention to express any opinion on the right of the applicant to the office; but we are clearly of opinion, that if he has not become invested with a good right to it by his being elected thereto, and what he has done himself in regard to taking the affirmation and tendering a copy thereof to the com
But indeed I am inclined to be of the opinion, that under the facts and circumstances disclosed in this case, a mandamus would not lie for ■ any purpose. Though it be true that a mandamus may be granted to admit to as well as to restore to office, where it is one that concerns the public or the administration of justice; yet generally this will not be done where there is clearly another remedy, and particularly when it is of a much more efficient character. As for instance, where there is a person already in the office exercising and performing the duties appertaining to it, the court will not grant a mandamus, because a quo warranto will lie; The King v. The Mayor of Colchester, (2 Term Rep. 259.) A mandamus will not settle or determine the right to the office, but a quo warranto will. Rex v. Ward, (2 Stran. 894, 895, 896.) King v. Harris, (3 Burr. 1422, 1423.) The effect of the mandamus is to fill the office by putting the relator in possession of it, when vacant; so that the right may be tried by a quo warranto. See the ISth section of the act of the 13th of April, 1840. Stroud’s Purd. 904, (ed. 1841.) The rule is therefore discharged.
Rule discharged.
