State ex rel. Mercer v. Sullivan

83 Wis. 416 | Wis. | 1892

Cassoday, J.

The aggregate number of votes cast at the town meeting at both precincts, April 5, 1892, for chairman of the town, was 283. Of these Doyle received 147, and the relator 136, and Doyle was, accordingly, declared elected; and the requisite statement thereof was made and certified, and left and filed with the town clerk; and Doyle thereupon qualified and entered upon the duties of his office five days prior to the time when this proceeding was instituted. The contention is that the inspectors wrongfully counted the votes cast for that and other offices at Manitowish Station. Each and all the other persons voted for at that election and at those precincts, who were declared elected, qualified and entered upon their respective duties prior to the commencement of this proceeding. This being so, the question recurs whether the relator is entitled to this mandamus.

“ It may be stated, as an almost invariable rule, that the duties of judges of elections and of canvassing boards are purely ministerial, and that the writ of mandamus lies to compel the proper performance thereof.” Merrill, Mand. § 178. But here the inspectors have performed their duties as they understood them; and hence that rule is not here applicable. The same author declares that, “when there is a party already in possession of the office, holding it under cplor of right, the courts will refuse to issue the writ, and will require the party to resort to a quo warranto first, in order to determine the right of the incumbent. They refuse-to allow this writ to be used to try the title to an office. The reasons for this ruling are because mandamus never lies when there is another adequate remedy, which quo warranto is considered to be, and because justice requires that the incumbent should be a party” and have a hearing. Id. § 143, and numerous cases there cited. “ Mandamus is never issued, when a person is in an office by color of right, to admit another. The proper remedy is an information in the nature of a quo warranto? St. Louis County Court v. Sparks, 10 Mo. 117, 45 Am. Dec. 355; State v. Dunn, 12 Am. Dec. 25, and cases cited in the notes. Courts have gone so far as to hold that, “ in case of a disputed election to a municipal office, m.andamus may issue to compel the recognition of the defacto officer until the rights of the parties can be determined on quo war-ranto.” In re Delgado, 140 U. S. 586.

By the Court.— The judgment of the circuit court is reversed and the cause is remanded with direction to- dismiss the relation.