ple vs. Holden, 28 Cal., 139. Kneass' Case, 2 Parsons, 570. Collings' Case, Brightleys' Election Cases, 513.) § 317. Mandamus is not the proper remedy for obtaining possession of an office, or for ousting one who usurps an office. There are cases perhaps where there is no doubt as to the duty of a public officer to issue a commission to a person elected, and in which, therefore, a mandamus may issue to compel the performance of that duty. But when it is a question of any doubt, a court should not interfere by mandamus, but should put the party in the first instance to an information in the nature of a quo warranto, or to such remedy as may be specifically provided by statute. (Commonwealth vs. Commissioners, 5 Rawle, 75.) § 318. And it has been held also that a court of chancery should not interfere by injunction to restrain the officers of election from counting illegal votes, or from issuing certificates of election to persons not entitled to them. The reason is that a court of chancery will not interfere collaterally and in advance of a contest to pass upon the claims of conflicting claimants of an office. (Lawrence vs. Knight, 1 Brewster, 69, Brightley's Election Cases, 617.) And to the same effect is Hulseman vs. Rems, 41 Pa. State R., 296. Moore vs. Horsington, 31 Ill., 243. See also 17 O. State, 271, 15 O. State, 114, 28 Pa. St., 9, 41 Pa. St., 396, 44 Mo., 223, Dickey vs. Reed, 78 Ill., 261. Jones vs. Black, 43 Ala., 540. But this ruling, though evidently sound and supported by the weight of authority, has not been altogether uniform. In Miller vs. Lowery, (5 Philadelphia, 202,) the Court of Common Pleas of Philadelphia granted an injunction to restrain a candidate who had received a certificate of election, regular upon its face, from taking possession of the office, upon the ground that the certificate had been fraudulently issued. And see also Peck vs. Weddell, [17 Ohio State, R., 271.] § 319. Where the application is for an injunction to restrain the officers of election from receiving votes from a class of persons who are clearly disqualified, the same rule does not apply, and an injunction may well be granted, for in such a case, the object would be, not to decide prematurely and collaterally a contested election case. McIlvain vs. Christ Church, of Reading, [28 Legal Int., 126.] § 320. A case may have arisen in which a court having, in a proper action, decided upon the result of an election, may have issued upon proper application, a writ of mandamus, to compel the proper election officers to issue a certificate of election in accordance with that decision. But, ordinarily the writ of mandamus will only issue to compel a certificate to issue upon the returns, and in accordance with the result as it appears therefrom. When it becomes necessary to go beyond the returns and consider questions touching the legality of the election, or of fraud, illegal voting, or the like, then mandamus is not the proper action, and it is necessary to resort to quo warranto, or to such statutory proceeding as may be provided in such cases. [State vs. Churchill, 15 Minn., 455.] § 321. Mandamus will lie to compel a board of returning officers to declare the result and issue certificates in accordance therewith, where these duties are by statute required of such board. As such duties are purely ministerial, the board may be compelled by mandamus to perform them. [Clark vs. McKenzie, 7 Bush., [Ky.] 523.) And in West Virginia it has been held that the Circuit Court can by mandamus compel a board of supervisors of a county to issue certificates of election to township officers adjudged by the Court to have been duly elected at a valid election. (Bush vs. Monroe Co., 4 W. Va., 371.) But of course this latter case must have been one in which the election returns and all proper evidence as to the result, came legitimately before the Court for consideration. If otherwise, the case is not good authority, for it is quite well settled that mandamus will not lie to try and finally determine the title to an office. § 322. It is well settled, as a general rule, that the writ of mandamus will not be granted in any case where another adequate and specific remedy is provided, and it follows that the cases are rare in which the courts will interfere by mandamus, with questions touching the title to and possession of a public office. The courts have almost uniformly refused to grant the writ of mandamus in cases of this kind, upon the ground that an information in the nature of a quo warranto is the appropriate remedy for testing the title to an office, as well as for determining the right to the possession thereof. Where a party is in possession of an office as its actual incumbent, exercising its functions defacto, and under color of right, mandamus will not lie to compel him to vacate and give place to another. In all such cases the party aggrieved will be left to his common law remedy by quo warranto, or to such other remedy of like nature, as may be specifically provided by statute. (High on Extraordinary Legal Reme dies, Sec. 49. Johns Cas., 79. People vs. Corporation of New York, 3 People vs. Supervisors of Greene, 12 Anderson vs. Colson, 1 Neb., 172. BonSt. Louis Co. ner vs. State of Georgia, 7 Geo., 473. Court vs. Sparks, 10 Mo., 118. State vs. Rodman, 43 Mo., 256. People vs. Common Council of Detroit, 18 Mich., 338. Underwood vs. White, 27 Ark., 382. People vs. Forquer, Breese 68. State vs. Dunn, Minor's, [Ala.] 46. Commonwealth vs. Commissioners, 6 Whart., 476.) And the same doctrine is maintained in the courts of England, (King vs. Mayor of Colchester, 2 T. R., 260. Queen vs. Derby, 7 Ad. & E. 419. King vs. Winchester, Ib., 215.) A few cases may be found which seem to hold a contrary doctrine. (Conlin vs. Aldrich, 98 Mass., 557. Harwood vs. Marshall, 9 Md., 83.) But it is safe to say that the rule as above stated is sustained by the overwhelming weight of authority. § 323. And the rule is quite as well sustained by reason. Mr. High, in his excellent work on Extraordinary Remedies, well says: (Sec. 50.) "Aside from the existence of another adequate remedy by proceedings in quo warranto, to test the title of an incumbent to his office, it is a sufficient objection to relief by mandamus in such a case, that the granting of the writ would have the effect of admitting a second person to an office already filled by another, both claiming to be duly entitled thereto, and resort must still be had to further proceedings to test the disputed title. And the rule finds still further support in the fact that ordinarily the determination of the question of title to a disputed office upon proceedings in mandamus would be to determine the rights of the de facto incumbent in a proceeding to which he is not a party." § 324. "Where the office is already filled," says the court in People vs. Corporation of New York, supra, "by a person who has been admitted and sworn and is in by color of right, a mandamus is never issued to admit another person, because the corporation being a third party may admit or not, at pleasure, and the rights of the party in office may be injured without his having an opportunity to make a defense. The proper remedy in the first instance is by an information in the nature of a quo warranto, by which the rights of the parties may be tried." § 325. While it is well settled that mandamus will not lie for the purpose of settling disputed questions concerning title or possession of an office, cases have arisen in which this writ has been granted to compel the proper officer to swear in the person elected to an office. This is simply to compel the qualifying officer to discharge a duty enjoined upon him by law, and is therefore within the proper scope of this writ. (King vs. Clark, 2 East, 75. Churchwarden's Case, Carth., 118. King vs. Rees, Ib., 393. Ex parte Heath, 3 Hill, 42. High on Extraordinary Remedies, Sec. 53, and cases cited.) § 326. But it is not competent, or at least not proper, for a court in the exercise of this power, to compel the swearing in of the person elected to go further, and in cases of disputed and contested elections, to compel the qualifying officer to swear in either one of such parties before a judgment of ouster has been rendered in a proper proceeding. "In all cases of doubt," says Mr. High, in his work above |