Year: 1867

Inc OouMty Alcu8uIcII OmCEa


On the motion of James McAuliff, asking an
order of Court, requiring J. D. Blewett, County
Auditor, to turn over to the said McAulif, the
assessment roll for 1867, Judge wyche, on Mon
day lAst, rendered the following decision:


This is an application for writ of mandate
on the County Auditor, compelling him 10 de-
liver to the petitioner, as County Treasurer. the
duplicate assessment roll of the county. which
the law requires the Auditor to deliver to the
County Treasurer.


The facts in the case are stated in the plead
ings and will not be here detailed. The various
authorities cited BY the counsel on both sides
have been carefully examined, and without 90
ing into detailed statement of the numerous
cases, they seem generally to agree that the writ
of mandate is high judicial writ, issuing. not
as matter Of right, but in the discretion Of the
Court, and lies only in cases where there is g
clear legal right, and there is no other specific
legal remedy, and where the writ-is essential to
prevent disorder and failure of justice. 1t
does not lie to try the title to an office nor does
it issue to any person or officer in matter in
the determination Of which there is the exercise
of discretion. In this case the petitioner would
be entitled to the writ, only in case his right
to the Office of County Treasurer is clear, be-
cause upon that right depends the duty of the
Auditor in the premises. From the return of
the defendant, and the facts and showings
made, am of the opinion that his right ia mn
certain and doubtful, and that the writ cannot
properly issue until the question is determined,
whether the petitioner or ]. D. Cook is the
Treasurer Of the county. The title to an office
can be determined only by an information in the
nature of a quo OGrranto, and not BY proceeds
ing of this character.


If the petitioner is entitled to the writ In this
case, no satisfactory reason offers, why be would
ba led IN a vur: 0n fha And N
pei him to issue license on the production of the
proper receipts from the petitioner, and to do
and perform divers other matters required of
him, and to a writ on the County Commission
ers, compelling them to recognize him as the
County Treasurer, and to transact their business
and make their settlements with him as County
Treasurer.


The determination of the question whether
the petitioner or ]. D. Cook is the Treasurer of
Walla Walla county, would determine and draw
after it all these other questions, aud the numer-
Gus questions connected with the office, can
only be properly and satisfactorily determined
by the adjudication of this question.


In this case the petitioner, considering himself
entitled to the Office, still retains the books pa
pers and monies belonging to the Office, while
J. ID. Cook is recognized as the Treasurer BY the
County Commissioners, and is proceeding to act
as such.


From this state of things the public interests
must to some extent suffer, and as there is no
reason to doubt that each claimant considers
himself legally entitled to the office, it would
seem that their own and the public interests
alike require early determination of the
matter. The force of the objection that the
County Commissioners had no right to recog-
nize j. D. Cook as the Treasurer is not perceived.
The law requires them TO transact certain mat.
ters with the Treasurer, and hence the necessity
OF recognizing some person as Treasurer and as
in this case there may be uncertainty and doubt
who is in fact the Treasurer, they had necessa.
lily to exercise their judgment and discretion in
the matter, and to proceed to act on that judg-
ment until some other competent tribunal should
determine otherwise.


The boundaries of this writ are not precisely
defined, and the decisions in the different courts
are not always reconcilable, but after an exami-
nation ofthe authorities and upon consideration.
| am of the opinion that the right of the peti
toner to the Office of County Treasurer ia not
clear; that he would be entitled to this writ
only in case he had clear right to the Office
that bis right TO the same cannot properly be
determined on this application, aud that either
claimant II the other is proceeding to iutrude
into and exercise the duties and functions of
the office of County Treasurer, may, by fling an
Information, have the rights of the claimtuts to
the office of County Treasurer determined, and
that the question be determined in nd other
proceeding. No opinion is here expressed or in
tended to be expressed, to the right of the De,
tilioher to the Office of County Treasurer. The
motion, therefore, for a peremptory mandate is
denied, with costs for defendant.


]. E. WYcHE, Julgez


Mix and Sharpstein, for plaintiff; Lasa.er and
Stevens, for defendant.