Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-02-02


514. To compel court to enter Judgment,
9 Peters, 673. To compel court to sign
bill exceptions. 5 Peters, 1870. To COM
pei postmaster general TO perform minis
terial duty, 18th Peters, 524. To compel
register OF land office to enter application
for land, Wheaton, 369, To compel
court OF claims to entertain motion for
new trial, Is Wallace, 664. To restore an
attorney disbarred by court having nc
lrisdiction, Wallace, 384. To compel
town officers to audit charges against the
town, lst Otto, $50.
In Ohio, Alabama, California, Mary
land, North Carolina, Indiana and Mon
tans, the writ will lie to compel the gov
ernor OF the state to perform merely
ministerial duty. (IIigh's Extraordinary
Legal Remedies, 49,
1t has also been successfully invoked to
compel an old officer to deliver records
which concern justice, to the new one.
To compel the clerk of company to de.
liver books, etc. or the steward OF a
borough to attend with the books at next
corporate assembly, etc. Comyn's Digest,
vol. 5th, "a. In the case Of the American
Raiway-Frqg Company vs.. Haven ct al,
in l0l Mass, ABB, it was sad:
at is well settled that it can be granted,
for instance, to compel Il town clerk or
clerk of the public corporation whose Of
flee has expired to deliver over to his sue
cessor his common seal, books, ETC."
In the case OF John A. Conlin, vs.
Samuel N. Aldrich ct a., the following
iects appeared: The town meeting had
been held at which Conlin WAS chosen as
a member of the school committee for the
term of three years; but the polls were
open aud the election was made after sun
set. This election was treated as invalid,
and another meeting called, at which
Burditt was elected to the same Office.
The town clerk gave to Conlin certificate
of his election but Aldrich and Start who
were the two other members OF the com
mittee, refused to recognize him as Their
associate, or to permit him to act as such,
they recognizing Burditt as properly
elected. The application Of Conlin for
" rit of mandamus was allowed, Hoar j.,
declaring at is not very strongly con-
tested by the respondents that the appro-
pirate remedy for the petitioner il he is
entitled to any relief, Is the writ of man.
damus. That point is substantially set
tied by the case Of Strong petitioner, 90
Pick, asa"
This case, like the one at bar, presents
the condition of rival claimants for the
same position. So also OF the case Just
cited from l0l assachusetts, where it
was said
The respondents insist, how ever, that
inasmuch as they are actually in posses
sion of the Offices in question under
claim OF right and exercising the functions
annexed to them, the only mode OF con-
their title is bya writ OF quo
warranto. The fact that the officers are
de facto filled and occupied by rival claim
ants is by no means decisive, and not
very material upon this point. 1t has
been so decided in the case of conflicting
claims to the office of county commission
er. Strong, petitioner, goth Pick, 4S4.
Also in the case of members Of school
committee. Conlin VS.. Aldrich, SO Mass,
557."
In the case OF Jennings vs. Fisher
and another, 6lst Mass, 239, it was
said:
"This writ no doubt is more freely and
frequently granted at the present time
tkan it was formerly. 1t lies to former
town clerk or clerk of a company to de-
liver to his successor ti1e common seal,
books, papers and records of the corpora
ton. which belong to his custody. In
deed it lies to any person who happens to
have the books of a corporation IN his
possession and refuses to deliver them
up"
In the case OF Kmball vs.. Lamprey,
l9 n. H., 220, Gilchrist G. j. said
There are numerous authorities tend
ing to show in what case writ OF man
damus is the appropriate remedy. In
the case of Commonwealth vs. Athearn,
Sd Mass, 285, it is intimated by Parsons,
G. j., that the proper mode is for the sue
cessor of the town clerk to take the oath
of office, and to demand Of the former
clerk the records and ii they are refused
then to move for a mandamus to com.
mand him to deliver over the records. 1t
was alleged in that case that the defend
ant was in possession of the Office, but
was not 80 legally. In the First Parish
in Sudbury vs.. Stearns q PICK, l4S,
trover was brought against the defendant
for the book of record of the parish. His
defence WAS that he was the clerk, and as
such had right to the possession OF the
records. Morton, J. says "a mandamus
would doubtless be more appropriate
and effectual remedy to compel the de-
livery of the records to the legal officer, y
and he cites the case of Commonwealth
vs. Athearn."
The rights OF persons acting colore otficio
can be tried only in an information in the
nature Of QUO warranto or on a writ OF
mandamus."
To the same effect is the doctrine laid
down by the supreme court of Vermont,
in the case OF Allen Stone, ct al, vs.. Jo-
seph B. Small, ct al, the syllabus of which
is as follows
~. Mandamus is the proper remedy to
compel the old trustees of an incorporated
village, attempting to hold over, to de-
liver to the new board the books, papers
and articles of personal property, in their
possession, belonging to the village; and
| to prevent their interfering with the new
trustees in the exercise of their office,
80. When an act incorporating village
imperatively declares that it's trustees
shall be annually elected, on certain
day, the majority of meeting called fol
the purpose Of electing such officers, has
no power to adjourn the meeting without
day, in fraud of the law and the minority
and if legal minority Immediately fol
lowing such adjournment, reorgan
ICES the meeting and elects trustees, they
are entitled to hold their Office"
These authorities, we think, demon
strate the fact that although the proceed
ing by mandamus against the relator in
voIved incidentally, If not directly, tn