The Elko independent. [volume] (Elko, Nev.) 1869-1872, 1869-12-22

the proper registration OF an elector or to erase
from the registered list Of electors the name
OF any person therein registered, which is in
effect review OF matters wherein the Regis
try Agent has acted judiciously and discretion
arily In granting or refusing the application.
But otherwise, in all essential respects, the
writ and proceeding under il stand unaffected
by the Act in question, and must be governed
by those general principles and rules applica-
ble thereto. Among them are: First-To
authorize the issuance Of the writ of mandam-
us, the act required to be performed must be a
duty resulting from the Office and enjoined by
law. (Practice Act, Title Mandamus.) Second
1t must appear that defendant yet has it in
his power to perform the duty required of him,
and the writ will be refused if It be manifest
that it would be vain and fruitless or cannot
have abenefcial effect. Tapping on Man
damus, II; The People vs.. Supervisors of
Greene, IL wend., 2l7; The people vs..
Supervisors of Westchester, Is Wend.. COZ;
Colonial Life Assurance Co. ys. Board of Su-
pervisors of New York, 2i wend., 1867.
The Act creating the county of Ellio in
Section 8, provides that the Registry Agents
appointed by the Board of County Commits
sioners shall have power and authority, and it
shall be their duty previous to the 20th day of
May 1869. to register all the legal voters prop
erly entitled to be registered within their dis
tricts or precincts Offering to do so. Such reg
istration shall be conducted in all respects nm
State. Each Of said Registry Agents shall,
prior to the lst of June 1869, certify to said
Board of County Commissioners the number
of votes by each registered: also the registry
list from which the certificate is made, "A
copy thereof. 1t is furthermore provided in
said Act. Section 4. that "if il shall appear
from the certificates of the Registry Agents,
supported by an examination of the registry
lists Cor n copy thereof that more than 900
voters have been registered within the county,
such facts shall be properly noted, or entered
on the minutes of the proceedings of said
Board, and the Board shall make an order for
the organization of the county, by an election
Of county and township officers. II
it appear that the number of registered voters
is less than 900, the election for county Off
GERS shall be held on the day of the general
election in the year A. D., 1870 pro-
rided, the special election herein provided
for" (Which under Section is fixed for the
third Monday iii June, loG9-being the 2lst
day of the month) ''if held, shall be so held
under the registration herein provided for. A
new registration shall be made for the cleo
ton i'm the wear 1870" " Sec X of the
Registration Act, before cited further defines
the duties Of the Registry Agents. and among
others therein enumerated, they are required
to hear and determine objections made in
given way, to any person registered and notified
of such objections, until o'clock, p. NJ, on
the fourth day previous to the day Of cleo
ton" But III respect to any and all of the
questions arising upon matters stated in the
petition, concerning the duty of such Regis
try Agent, they are subordinate to, and must
follow the determination of the leading and
principal question raised 10y this appeal Was
1t II duty resulting from his office ns Registry
Agent and within the power of Waterman to
comply with the mandate Of the District Court
of August 10Th to erase the names Of the per-
sons named from such registry roll? Ii has been
shown that the creation of the office and the
duties imposed upon the Registry Agents was
Tor special purpose, having reference Ia the
organization of the county, and the special
election of the Dist of June No other cleo
ton was authorized or could possibly occur
until the general election of 1870, and then,
as we have shown by the law, it was subject
to new registration. and with which these
officers, under their original appointment,
could have no duties to perform. Thus II is
4 seen, that the authority and corrcspondingly
the duty Of the Registry Agent was covered by
"A special commission, which at furthcst could
not extend beyond the dny appointed for the
special election, the Dist Of June. AS before
stated. the alternative writ was served on the
22d of June, the day following the appointed
time of such election, whilst the mandatory
writ was not directed To issue until the 10th OF
August, when such Registry Agent even at the
earliest Of these dates was fmct,Ls otticio. The
writ will not he granted in such IL case. (The
People VS.. Monroe, Oyer and Terminer, 20.
Wcnd. 1851
Although the matters stated -, the petition
may show disregard Of official duty by such
Registry Agent, vet il was beyond his power
Ia correct his notion. or in fact to act in any
way as Registry Agent when the first wri;
was served much less at the later time when
II pcremptory writ was ordered. The acts We
have cited furnished n sufficient reply 10 the
petition, and inquiry need have extended nc
! further To- show that the commands of tn,
later writ could not be complied with, for he
was no longer an officer under the law, and
that "its issuance would" in th5 language o
tho authorities herein cited, "be vain ant
! fruitless, and could have no beneficial effect.
| Hence we conclude TINT tho Court below
therefore, il is ordered that such Judgment b,
reversed. with directions to dismiss the peti
! ton. JOHNSON, j.
| We concur, LEWIS, @. j.