10 Minn. 369 | Minn. | 1865
By the Court —
— This was an application for a peremptory mandamus. |A motion was made on behalf of the defendant; Lambert, to dismiss the proceedings on the ground that this Court had no jurisdiction to issue the writ of mandamus save to a District Court or District Judge. Section 2, Art. 6, of the Constitution declares that the Supreme Court “ shall have original jurisdiction in such remedial cases as may be prescribed by law, * * * * but there shall be no trial by jury in said Courts.” Section 5 of the same article provides that “ the District Courts shal have original jurisdiction in all civil cases, both in law and equity,” &c. In both cases the jurisdiction conferred is original, and so the word “ original” cannot be used in the sense of exclusive. By Sec. é,page 475, Bub. Stat., the Supreme Court is empowered to issue writs of mandamus to all courts of inferior juris
To come to the merits of the controversy, it appears that the defendant, Lambert, was elected to the office of Judge of Probate for Ramsey county, at the general election in 1862, that his term of office commenced as early as the first day of January, 1863, and expired as soon as the first day of January, 1865. The Constitution declares that Judges of Probate shall be elected for the term of two years, while it does not provide that a Judge of Probate shall hold Ms office until his' successor is elected and qualified, as in the case of Judges of the Supreme Court. 9 Minn., 283; 8 Abb. Pr. R. 359. Under this state of facts it would seem that from the time when Lambert’s term expired under his election in 1862, and until his successor was inducted, there was de jure a vacancy in the office. Upon the election in 1864 Lambert was not returned as elected, nor was any certificate issued to him, nor does he appear to have qualified. On the other hand, it is alleged in the petition, and not denied by the defendant, that there was a general election held in 1864, in and for the county of Ramsey, and also in general terms that the vote was canvassed (without stating by whom), and that the petitioner was returned as having received a majority of votes cast for the office of Judge of Probate. The defendant in his affidavit admits that there was a canvass made by “ three unauthorized persons, neither of whom, ” in his own language, “ was the County Auditor or a Justice of the Peace of said county, taken to the assistance of the County Auditor by the County Auditor,” who assumed to act as a County Canvassing Board and declared Crowell elected at the close of their canvass. Now all that is contained in this denial might be true construed together, and yet the canvass might have been made by the deputy County Auditor and two competent Justices of the Peace taken to his assistance. The plaintiff deposes that the certificate of election which is set out in haec verba, was issued to him. That
We think that the other allegations of the petitiou which are denied by the defendant may be regarded as surplusage.
On the facts appearing from the petition as to which no issues are properly raised, we conclude that the plaintiff is entitled to the writ of peremptory mandamus. Some points were made by the defendant which we do not deem it necessary to dwell upon. On the whole it may be said that the question here is not who will be entitled to the office on an examination into the merits of the election, but who is noto entitled to the possession of the books and papers appertaining to .the office. The person holding the certificate is, under the circumstances of the case, prima facie tho officer, and therefore prima facie entitled to the insignia and records of the office. In such cases the writ of mandamus is a peculiarly proper, adequate and speedy remedy, and perhaps the only one by which to enforce the delivery of the books, &c.
Peremptory mandamus awarded.