Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1897-06-08
only at the will of the Board of Dj-

! oPoH nllng the answer OF reSDo,1fi e If
MS counsel moved the court to dis
miss the application of relator upon
substantially the following grounds:
mat 1t is apparent on the face of the
pieadingS that the issue presented
'"'"'F-S determination as to the
peFson properly elected to an Office or
entitled to exercise its functions. and
that it Likewise appears that the
Office IS already filled by an actual
incumbent, exercising the functions
OF the office de facto, and under color
OF right; that ,nandamus will not lie
to compel the admission of another
claimant nor to determine the dis
puted question of title and that in
such case the party aggrieved, who
seeks an adjudication upon his alleq-
ed title and right of possession TO
the office, will be left to assert his
rights by the aid Of an information j,
the nature Of quo warranto, which is
the only ehlCacrons and specific re
meoy TO determine the question il,
dispute between the parties.
QCo WARRANrO. 1t Seems that
! Under the common law an information,
III the natute OF quo warrauto will lie
Only for usurp'ug q public office
substantive office, and not merely ,ha
function Or employment of a deputy
or servant held at the will and nleas-
ure of another.
In Darley VS.. The Queen. - q
and FIN, 54l. Tindal. {. T.. deliver
ing the op;r;on of the 1udges said
After the consideration of all +ha
cases and dicta on this subject
the result appears to be that tb;.
proceeding by information IN tha
nature of quo warranto will lie ar
HsuTping any office. whether created
by charter alone or by the crow, with
consent OF parliament provided tha
Office be OF public nature and
substantive Office, not merely tba
junction or employment Of 4 deDntv
OF servant held at the will and nIa,s-
ure OF others, for with respect to ,ncb
an employment, the court certainly
viii not interfere. and the information
will not properly lie. "
Blackburn. g5S, a rule was obtai~a1
on the defendant to sho =
cause why an information in tba
nature OF a quo warranto shou;1 ,o+
be exhibited against him to show
cause by what authority he claimed
to exercise the Office of Clerk to tI,a
Justices OF Newport. Lord
Campbell, c. J. said: 1.-The r,,a
must be discharged. First tta
ounce is held during pleasure, rbo
uSt'ceS may remove their CIerl-
merely for the purpose of repIac;no ,
nlin by person whom they tbirl
ntter for the Office. The princ;r,Ies r
ald down IN Darley VS.. the Queer,
govern this case Wigbtmar
said. II am entirely of the sam,
'p'n'o'', The Clerk holds only T.
iurlng pleasure. " Cro,,,+o,,
'a'd; II am Of the same on,r;o., u u
"e O'efS IS removable at pleasure
,-F
lro quo "arfanto will not he for ar
'ftlce OF such a tenure" It
High, i'll his treatise o., Rx+- :"
'naTy Legal Remedies. Sec e., y
ays; I'm determining. upon the a. a.
ropr1ety of quo uarranto ;,,fo,,,
'''' 'S d corrective of the usurpa- =,
ION OF an office or franchise an -,
ortant distinction is to be d,o p
e'"se' 'ne case OF public Office ,,,
roper affecting public rights and +.
1'efests, and that of a mere e,nn1o,,
lent or agency, having no certain "
'nure, but deterlninable at tbe ,;,,
the .,,,1o a. Tue VII! tx
Tue employer. And while in y -,
-ner'c 81 Sense, it is true that every -: -
lice IS an employment, vet the co-. -;
Use OF the proposition By no ra,r.
Ii'"s' and there are many employ h;
en'S' even OF pubic nature. which
e e NO. -. IS, While, therefore, the j.,
risa'cl'"n ~~''r discussion is we'll ~ },a
'aoi'Shed as regrrds the ,s.,..,,t;o,,
Offices of a public ualure if ;s a. -.
'er exercised in the case of mere
=, VI employment determina5le he
,ne p'easu'e of the emolover t,,; M
'ei'lhg Extraordinary Relief SEQ -.
81 is to the same effect 49,: -:
An Act regulat;r, LII