27 Ark. 382 | Ark. | 1872
The appellee, as assessor of Phillips county, brought his action in the Phillips County Circuit Court, by petition for mandamus, to compel the appellants, Samuel J. Clark, county clerk, Frank Trunky, county surveyor’, and Q. K. Underwood, county judge, as piembers of the Board of Equalization of real property for said county, to allow him to be sworn and qualified as a member thereof, and to sit and act with, and as a member of such board.
The court granted the order prayed for; the appellants excepted to the judgment, and appealed to this court. • The law constitutes the county clerk, county assessor, county surveyor and county judge a board for the equalization of real property of their county: Sec. 66, Act Approved April 8, 1869.
If, therefore, the appellee were the assessor of Phillips county, he was clearly entitled to the privileges sought by his petition ; and if his title to the office were undisputed, the proceedings in the court were proper.
But the petition of the appellee discloses the fact that one II. B. Robinson also claimed to be assessor of said county, and the record in the case shows that he was then performing the duties of said office, and was in possession of the same, at least, under color of right.
The right, therefore, to sit as a member of the board of equalization, is altogether subordinate; the main question being title to the office of assessor; this being established, the right to sit and act as a member of the board of equalization of real property, would follow as a matter of course.
The practice is well settled, that the petitioner seeking mandamus, must show a clear legal right to the subject matter of his petition; that a conflict of title to office being presented, cannot be determined by mandamus; the proper office of this writ being to enforce the performance of a duty, and not to establish legal rights; that it will not be issued to admit a person to an office while another is in under color of right. See Fitch vs. McDiamid, 26 Ark., 482, and the authorities there cited.
The facts of record, in the-case, do not bring the appellee within the rule; the mandamus, therefore, was improvidently and'erroneously awarded; the judgment will he reversed, and the cause remanded with instruction to dismiss the-petition.
