#### State ex rel. Field vs. Avery.

March 15.

Where the return of a register of deeds to an alternative writ of *mandamus*to' compel him to hold his office at a place alleged to he the county seat, according to the result of a certain election, was adjudged insufficient on demurrer, and the relator haying moved for a peremptory writ, the clerk of the court of the same county presented affidavits alleging *collusion*between the relator and the register, and that similar suits had been commenced against other officers of that county to test the same question, in which issues of *fact*had been joined, it was *held,*that proceedings in the action against the register should he stayed until the further order of the court after a trial of the issues of fact should have been had.

MANDAMUS. The case is stated by the court.

*J. H. Knowlton*and *F. Winsor,*for the relator.

*L. Yan*Slylce, for the respondent.

*By the Court,*

Paine, J.

This was a *mandamus*to compel the respondent, a register of deeds of Juneau county, to hold his office at Mauston, the relator averring that to be the county seat, according to the result of an election recently *19Reid on that subject. The respondent made a return, setting up only that the canvass of tbe votes given at sucb election. showed that New Lisbon was the county seat, hut not denying the allegation that the majority of the votes was in fact in favor of Mauston. This return was held insufficient on demurrer, and a peremptory writ awarded unless the respondent should amend within a specified time. That time having expired, the relator moves for the peremptory writ, and a motion has been made by the clerk of the court of that county, upon affidavits averring collusion between the relator and the respondent, either to be let in to defend this suit, or else that the proceedings in this may be stayed to await the result of other similar proceedings against other officers of that county to test the same question, in which issues of fact have been joined and sent to the circuit court for trial.

The counsel for the relator opposed these motions, and insisted that the peremptory writ should be awarded immediately, without reference to what might be the result of the trial of the issues of fact in the other suits. And this conclusion he arrived at by applying strictly to these proceedings the same principles which govern in suits relating merely to private rights. But it seems very obvious to us that these principles cannot be so applied. On the contrary, although these are different suits, they are brought to test one question, and that a question of public importance, that is, the location of the county seat. And it is clear that this is a question which ought not to be decided one way in one suit, and differently in another, thus establishing two county seats; when in law there can be but one. But this result may happen if they are to be treated as mere private suits, each to be decided without reference to the others.

It is true there is no statute prescribing definitely how questions in respect to the location of county seats may be judicially tested, nor how far one proceeding shall be a bar to another. It would undoubtedly be well to have such a statute enacted. But we do not think, even in the absence of such a statute, that we are bound to overlook the nature and object of these proceedings, so far as to allow several *20ju^gmen^s l°cating tbe county seat at different places, or else to allow tbe whole people interested in tbe question to concluded by tbe acts of an officer wbo may be proceeded against by collusion, and fail to make any issue which shall present tbe question upon its merits, and refuse to allow any other party to appear and make such issue for him.

As issues of fact have been joined in tbe other cases, we deem it tbe proper course to order all proceedings in this stayed until tbe further order of the court after tbe trial of the questions of fact shall have been had.

Ordered that tbe proceedings be stayed accordingly.