25 Minn. 340 | Minn. | 1879
At the general election in November, 1876, the ■respondent Williams was duly elected treasurer of the county ■of Lyon, for a term regularly expiring in March, 1878. After ■qualifying, he entered upon the duties of his office, and he still continues to discharge the duties thereof, and remains in possession of the records and other property appertaining thereto.
At the general election in November, 1876, Williams, while county treasurer, was duly elected a member of the house of representatives of this state, and on January 8, 1878, he accepted such membership, entered upon its duties, and thereafter continued to discharge the same. On January 22, 1878, the board of county commissioners of Lyon county determined that by reason of Williams’s election to the office ■of representative, his acceptance thereof, and entry upon its duties, a vacancy had been effected in the office of county treasurer, and thereupon they appointed the relator to fill it. A certificate of his appointment was delivered to the relator, •by whom the appointment was thereupon accepted, and having duly qualified as provided by statute in the case of a -county treasurer, and having notified the respondent Webster —who had been appointed by Williams deputy treasurer, and who was in possession and charge of the records and other property of the county treasurer’s office — that he had been so appointed treasurer as aforesaid, he demanded possession of said records and property. Possession being withheld, he seeks to compel delivery of the same by the present proceeding in mandamus.
The respondent Williams contends that the controversy-before us is -as to the title to the office of county treasurer,, that the appropriate proceeding is therefore one in the nature-of quo warranto, and that consequently the present proceeding by mandamus cannot be maintained. We think this is-so. Unless his election to, his acceptance and entry upon the duties of the office of representative, operated to deprive Williams of the office of treasurer, the relator’s appointment is an absolute nullity. The question whether the relator has any right to the office depends altogether upon whether Williams-has any title to the same. That question lies at the thresh • old of the controversy. The relator cannot move a step until he has first made it to appear that Williams’s title is at an end.. Until he has done this, his certificate of appointment is primafacie evidence of nothing. And right here lies the distinction between the case at bar and the class of cases represented by Crowell v. Lambert, 10 Minn. 295 (369,) and Atherton v. Sherwood, 15 Minn. 221. In that class of cases — in which the question is, who is prima-facie entitled to the possession of the records and other property of a given office ? — the certificate of the auditor, which is conclusive until it is affirmatively overthrown, is properly held prima-facie evidence that the person named in it has been elected, and is therefore, if he has-duly qualified, entitled to the possession of the records and other property of the office. In that class of cases, the title to the office is not finally adjudicated; but the question of prima-facie right is properly regarded as settled by the audit- or’s certificate. But the case at bar is another thing entirely, because the question of title must be examined and -determined against Williams, the incumbent ele facto of the-
As a matter of first impression, it might be thought a sacrifice of substance to form to require the relator to resort to a quo warranto, rather than afford him the desired relief in the proceedings now before us — a mere turning him out of one door, to bid him enter at another. But a little reflection will show that this is a mistake. First, Gen. St. c. 80, § 3, provides that the writ of mandamus “shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law;” and see High on Remedies, § 49, and cases cited. In the second place, the usurpation or wrongful
Proceedings dismissed.