Arizona republican., 1916-12-31

determine the fact permanently beyond the pos sibity of revision reversal, but to determine the fact for the time being and until different result be reached in proper proceeding to contest the title of the certificate holder the office As against intruder in the office and in fact against all the world except de facto officer in possession Of the office under color authority settled by the determination of the canvassers until in proper proceeding that determination is reversed This doc Urine is in accordance with the uniform current of authority McCrary, Elect. Sec. 2O4-221, and cases cited; Merrill, Mand. Sec. 142.
 moments reflection will convince any mind that this is not only reasonable doctrine but the only doctrine which be tolerated. There will arise many disputed elections. It may sometimes consume much time to determine finally and concusvey who was elected. In the meantime the public welfare imperatively demands that the office be occupied by someone empowered to discharge it's duties Who shall it be? Shall 1t be the who bears the tifcae and has in his favor the adjudication of the tribunal created by law to primarily decide that tion shall it be by an intruder, with color of authority with neither certificate commission of kind who, by accident being in possession of the office, says that he was in fact elected thereto? There can be but reasonable answer to this ques tion. Plainly the with the certificate and the canvass in his favor must be admitted to the office, until competent tribunal reverses the decision of the canvassers. Any other doctrine would be sub versive of all law and order. The prior incumbent could well turn the possession of the office another defeated candidate on the pretense that he knew this other candidate really elected hold possession himself. Thus. the prior incumbent would become the judge of the prima face title
  portunties thus afforded to defeated candidates temporarily thwart the will of the people need only be suggested they need not be dwet upon.
 It very clear to that the power to decide the prima facie right to office lies with the can vassng board
 This prima facie right if it anything, that the person having it has the right the possession of the office and it's books, papers other property. when his office begins, if has duly qualified. To this think. there is but exception and that is when the office is already filled by de facto officer. There has been much discussion what will constitute de facto officer It is not material here to consider who may be de facto officer third persons public in general The question is Who de facto officer as against the person holding certificate of election who has duly qualified as required by law? On this question the is well settled. de facto officer who is in possession of office and discharging its duties under color of authority. McCrary. Elect (3d ed) Sec. 21S; Din. Nun. Corp. Sec S92. By color of authority is authority derived from election appointment, however irregular in- formal. that the incumbent be a voun- teer. McCrary, Elect Sec 21S. Tested by this rule is apparent that the defendant proper de facto officer against the relator There has been determination by any one in his favor has he any certificate. commission au- thority from any person. officer board purporting authorize him to discharge the duties office.
 The defendant not being de facto officer it was his duty surrender to the relator the property the office the commencement of the reator's Such a surrender would have been simply a recogni- on of the relators prima facie title the office under the and certificate. It would have affected any right the defendant might have to con test the election of relator in proceeding If 1t was the right of reator to be admitted office under his prima face title and hold it pending con test is evident that the right may be enforced by mandamus Blackstone says the writ issues in "all where party hath a right to have a thing done and hath no other specific means of compelling its performance.' Bl Comm no. The authorities are numerous that mandamus is the appropriate remedy in such