similar case it was held that the office was not full de facto against the relator, unless by his conduct he elected to consider himself ousted. In contemplation of law his title to the office de jure draws to it possession de jure, as in cases where simultaneous acts of occupancy are exercised by contestants over a legal title. In such cases there is nothing to be tried by quo warranto, and a mandamus is the proper remedy.1 § 151. Mandamus when removal from office is discretionary. Since this writ never interferes with duties which are discretionary, it will not lie to compel the removal of an officer from office when such removal is discretionary. - § 152. Party having the prima facie title to an office can enforce his rights as such officer by the writ of mandamus. In many cases the writ of mandamus has been applied for to compel the performance of duties, wherein it was necessary to take into consideration the title to office, though such title was then in dispute, and there were two parties each of whom claimed the office, as to give a certificate of election, to approve an officer's bond, to issue a warrant for an officer's salary, or to order the delivery of the books and papers belonging to an office. In such cases the courts recognize and enforce the claims of the party who has the prima facie title to the office. The writ has been issued: to audit the salary of a member of the legis lature who had a certificate of election from the proper returning board;' to audit the salary of a judge who had the prior commission and was the de facto judge; to pass on the bond of a sheriff who had the commission, though the county court claimed there was no election of a sheriff; to pass on the bond as collector of the county of one declared by the county canvassers to have been elected, though 1 Leeds v. Atlantic City, 52 N. J. L. 332. 2 King v. West Looe (Mayor), 5 D. & R. 414. 3 State v. John, 81 Mo. 13. 5 4 State v. Kenney, 9 Mont. 389. 5 State v. Draper, 48 Mo. 213. 6 State v. Howard Co. Court, 41 Mo. 247. 6 3 the board of chosen freeholders asserted he was not elected;1 to approve the bond of the clerk of the court, who had been commissioned by the governor; to draw a warrant for his salary as judge in favor of one who had been commissioned by the governor; to deliver the books of an office to one who was duly elected, and had the certificate of his election, and had qualified; to deliver the books belonging to an office to one who had the certificate of his election thereto; and to deliver the office-room and furniture thereof to one who had been appointed to the office upon the removal of the incumbent, though the incumbent had appealed from such order, when such appeal was not a supersedeas. A superintendent of schools who had his certificate of election, had filed his official bond and was filling the office, asked for a mandamus to compel the county commissioners to approve another bond, which he was required to give. The commissioners returned that he was elected to his office by a corrupt agreement, and that his election was void. The court adjudged the return to be bad, because the certificate of election barred all inquiry as to his right to hold the office except in a direct proceeding to contest his right. A clerk of a county was considered to be subject to proceedings for contempt in not obeying a peremptory writ of mandamus to recognize the relators as the county commissioners, for the court must have decided in the mandamus proceeding that they were the de facto officers, and the writ merely ordered him to do his duty and not to attempt to exercise judicial functions. The charter of a village required every person elected to an office therein to take, and file with the village clerk, an oath of office. A village ordinance authorized the clerk 1 State v. Camden Co. (Chosen Freeholders), 35 N. J. L. 217. 2 Beck v. Jackson, 43 Mo. 117; State v. Wear, 37 Mo. Ap. 325. 3 State v. Clark, 52 Mo. 508. State v. Dodson, 21 Neb. 218; Driscoll v. Jones (S. Dak., Mar. 1, 1890), 44 N. W. Rep. 726. 6 State v. Meeker, 19 Neb. 444. 7 State v. Warrick Co. (Com'rs), 4 State v. Sherwood, 15 Minn. 221; 124 Ind. 554. State v. Saxon, 25 Fla. 792. 5 State v. Jaynes, 19 Neb. 161; 8 Delgado, In re, 140 U. S. 586. to administer the oath. The return of the inspectors of the election showed that O'Brien received sixty-six votes, Morris A. Young sixty-six votes, Morris Young one vote and M. A. Young one vote. The court decided that the return showed presumptively Young's election, and that he was entitled to be sworn in that he might assert his legal rights; that the clerk was bound to administer the oath to the party having the prima facie title, though he might himself think the election was not legal. The court suggested that perhaps the clerk might refuse if each person was known to be ineligible to the office. The writ was granted in Young's favor.1 2 3 § 153. Subject continued. The writ has been refused, because another had been commissioned, and therefore had the prima facie title: to approve the bond of the relator as sheriff; to audit a judge's salary; and to audit the salary of the commissioner of the permanent seat of government. When under the circumstances of the case the alternative mandamus will involve the title to an office, those courts which refuse to try a title to an office by the writ of mandamus will refuse to issue the writ. For this reason the writ has been refused: to compel a county treasurer to deliver the books of his office to one who had been appointed his successor, on the allegation that his office was vacated by virtue of his election as a member of the legislature and by his entry upon the duties thereof; and to compel a notary to deliver up the books of his office, which, it was claimed, was vacated by the failure of the legislature to pass certain laws. For the same reason such courts have refused to allow the respondent to raise the issue of the eligibility of the relator to the office concerning which, as incumbent thereof, he is seeking to enforce his rights." 1 People v. Straight, 128 N. Y. 545. 2 Boone Co. (Com'rs) v. State, 61 Ind. 379. 3 State v. Moseley, 34 Mo. 375; State v. Thompson, 36 Mo. 70. 5 4 Winston v. Moseley, 35 Mo. 146. 5 State v. Williams, 25 Minn. 340. 6 State v. Pitot, 21 La. An. 336. 7 Turner v. Melony, 13 Cal. 621; State v. Sherwood, 15 Minn. 221; State v. Gamble, 13 Fla. 9. Con The fact that the respondent has paid the salary of an office to another, who was not the de facto officer, is no reason why he should not be compelled by a mandamus to issue a warrant for his salary in favor of the de jure officer; but the rule is different when such payment is made to a de facto officer, provided, and not otherwise, he came into office under color of title. When, however, the comptroller believes that the party is not an officer de jure, he may, as a good officer, refuse to draw a warrant for his salary, and in deciding a mandamus for such salary the court may determine the legality of his title, if there is no third party not before the court whose rights are involved in such determination. So when an officer has established his title to an office from a certain date by quo warranto, he is entitled to his salary from that date, although he did not acquire possession thereof till a later date. A certificate of election was refused to a party who was contesting the election of another, to whom the certificate was given, on the ground that he had by such proceeding an adequate remedy. When the approval of the bond of an officer-elect is considered to be an act involving discretion, the writ will be refused; but when it is not so considered, the writ will be granted to compel such approval in favor of every officer elect.6 3 § 154. Mandamus for books and paraphernalia of office by party with the prima facie title. As indicated in a prior section, the officer entitled to the possession of the books, papers, records and insignia of office, and to the rooms and buildings properly under his control, may obtain such possession by the writ of mandamus, when they are improperly retained from him. One who has been ap tra: State v. Williams, 99 Mo. 291; State v. Newman, 91 Mo. 445; State v. Somers, 96 N. C. 467. 1 Williams v. Clayton (Utah, Mar. 8, 1889), 21 Pac. Rep. 398. 2 People v. Brennan, 45 Barb. 457. 3 State v. Gamble, 13 Fla. 9. 4 Turner v. Melony, 13 Cal. 621. § 152. 8 Nelson v. Edwards, 55 Tex. 389; Walter v. Belding, 24 Vt. 658; Banton v. Wilson, 4 Tex. 400; State v. pointed or elected to an office may by this writ obtain all the muniments of his office from his predecessor. An action of replevin is not considered to be a sufficient remedy, since, in case the books are not found, the judgment can only be for their value, while it might be impossible to show their value. It might be added, that it might be impossible to adequately protect the public interests, unless the books were produced. Though there may be a dispute as to the title to the office, even those courts which refuse to try the title to an office by the writ of mandamus will issue the writ in such cases in favor of the party who shows the prima facie title. Such action will in no way prejudice or affect the contest for the office. The party who has received the certificate of election or the commission of office, and has qualified, is generally considered to have the prima facie title. The relator in such case must show that he is an officer de jure." Though the court may refuse to try the title to an office by the writ of mandamus, yet it will not regard a groundless assumption of the respondent's election. to an office, and a pretended exercise of the office de facto, but will compel the delivery of the seals, books, papers and instruments of the office to the party properly elected.' § 155. Subject continued. In one case where a return of official books was sought, the court stated that when a Johnson, 29 La. An. 399; Keokuk (City) v. Merriam, 44 Iowa, 432; Territory v. Shearer, 2 Dak. 332. 1 Stone v. Small, 59 Vt. 498; Cunningham v. O'Connor, 80 Tenn. 397; McGee v. State, 103 Ind. 444; Huffman v. Mills, 39 Kans. 577; Frisbie v. Fogg, 78 Ind. 269; Warner v. Myers, 4 Oreg. 72; Keokuk v. Merriam, 44 Iowa, 432; People v. Hilliard. 29 Ill. 413; State v. Kirman, 17 Nev. 380. 2 Keokuk (City) v. Merriam, 44 Iowa, 432. Contra: Anon., 2 Chitty, 255. 4 People v. Head, 25 Ill. 325; State v. Saxon, 25 Fla. 792. 5 People v. Head, 25 Ill. 325; Crowell v. Lambert, 10 Minn. 369; Warner v. Myers, 4 Oreg. 72; State v. Sherwood, 15 Minn. 221; State v. Saxon, 25 Fla. 792; State v. Jaynes, 19 Neb. 161; Huffman v. Mills, 39 Kans. 577; State v. Dodson, 21 Neb. 218; Driscoll v. Jones (S. Dak., Mar. 1, 1890), 44 N. W. Rep. 726. 6 People v. Nostrand, 46 N. Y. 375. 7 People v. Kilduff, 15 Ill. 492; 3 State v. Dusman, 39 N. J. L. 677. Kimball v. Lamprey, 19 N. H. 215. |