cited, (Sec. 53,) "as to the election of officers where the validity of the election is the chief point in controversy, the courts will not interfere by mandamus, but will put the aggrieved party in the first instance to an information in the nature of a quo warranto. And before a mandamus will be granted to compel the recognition of one as an officer, the court will require that judgment of ouster shall have been given against the incumbent de facto." (Commonwealth vs. County Commissioners, 5 Rawle, 75.)

§ 327. The Supreme Court of Massachusetts, in Ellis vs. County Commissioners, (2 Gray, 370,) held that where the law imposed upon the County Commissioners, the duty of certifying as to who received the highest number of votes for County Treasurer, mandamus will lie to compel such commissioners to certify that the petitioner had a majority of such votes, [if such was the fact,] although another person had been declared by them to be County Treasurer, and put in possession of the office. This was a case, however, which turned upon a single question of law, and all the facts were, by the return to the alternative writ fully stated. And while holding that the court might, if satisfied that petitioner actually received a majority of all the legal votes cast, command the board to so certify, the opinion is clearly intimated that after obtaining such a certificate it would be necessary to resort to quo warranto in order to remove the incumbent from the office and place the petitioner in possession; and it is therefore evident that the latter action is, in the absence of statutory regulations the more appropriate remedy, and that it should be adopted in the first

instance. Indeed it is impossible to reconcile this case with the general current of authority upon this subject, and it is quite clear that no action should be had in a mandamus proceeding, to which the incumbent of the office is not a party, which may directly or indirectly affect his rights, or pre-judge his claims.

§ 328. While mandamus will not lie to compel -admission to a disputed office, or to determine disputed questions of title to an office, it is sometimes the proper remedy for a failure of election officers to perform certain merely ministerial duties in connection with elections. By it the proper board or officer can be compelled to canvass the election returns; to determine and declare the result; to issue certificates to the persons entitled thereto. The writ may also be sought merely for the purpose of swearing in the person elected. (Ex parte Heath, 3 Hill, 42.) But the effect of a mandamus to swear one into an office is not to create or confer any title not already existing. (High on Extraordinary Remedies, § 52, and cases cited.)

§ 329. It is also clear that after there has been a judgment of ouster given against the incumbent defacto, in a regular proceeding by quo warranto, a mandamus will be granted to compel the recognition of such person as such officer unless some other process is provided by law. (Commonwealth vs. County Commissioners, 5 Rawle, 75,) And when mandamus is asked to compel the issuing of a commission to a person duly elected to an office, it is essential that the relator should show a clear title to the office claimed. (State vs. Albin, 44 Mo., 346.)

§ 330. Mandamus will lie to compel the making

of an appointment to fill an office if the person who is properly vested with the power of appointment fails or refuses to act. But the writ will not be granted to compel the making of an appointment to an office where it is apparent that the appointing power is about to proceed in the matter, and where it is not shown that there is an attempt to evade the law by unnecessary delay. [People vs. Regents of Universi-. ty, 4 Mich., 98.]

§ 331. The rule is, that mandamus will lie to compel election officers to discharge purely ministerial functions as contra-distinguished from such duties as are quasi judicial in their character. The duties of returning officers are purely ministerial, but in the nature of the case they must exercise a sort of judicial function in determining whether the papers received by them and purporting to be returns, are in fact such, and are genuine and intelligible and substantially as required by law. But after these questions are determined, the duty of counting the votes as returned, and declaring the result is a ministerial duty which the proper officers are bound to perform, and the performance of which may be compelled by mandamus. And it is not doubted that even as to questions concerning which returning officers exercise a discretion, they can be compelled by mandamus to act and to decide, though their discretion cannot be controlled by this means, and they · cannot, therefore, be directed by mandamus as to how they shall decide. If they decide any such questions wrongfully or erroneously, the party injured has his remedy by quo warranto, or by such other form of remedy as may be provided by statute.

§ 332. And of course it will be understood from what has already been stated, that where, as is sometimes the case, large judicial powers are conferred by law upon canvassing boards, mandamus will not lie to direct or control them in the exercise of their judicial or discretionary functions. It must be constantly borne in mind that the office of this writ is to compel the performance of acts which are purely ministerial in their nature, though it may, as we have said, be employed to compel, but not to control, the exercise of judicial functions. This rule being kept in view, no serious difficulty can arise upon this subject. [Grier vs. Shackleford, 2 Brev., [2d Ed.] 549. Mayor &c., vs. Rainwater, 47 Miss., 547.]

§ 333. In proceedings by mandamus involving collaterally the rights of contesting claimants to an office, the court will not review the decision of a board of canvassers, for the reason that such decision is to be treated as conclusive, except in proceedings by quo warranto. [People vs. Stevens, 5 Hill, 616. High on Extraordinary Remedies, Sec. 57.] In accordance with this doctrine it has been held that where the statute directs the board of County Commissioners to order an election for county officers, provided a certain number of qualified electors petition therefor, and it is made the duty of said board to ascertain whether the requisite number of electors have joined in such petition; mandamus does not lie to control them in the exercise of that duty. And if they have decided the matter and refused to order the election, mandamus will not lie to compel them to make such order.

[State vs. Commissioners, 8 Nev., 309.] And it is also clear that the writ of mandamus will not be ordered to compel election officers to perform a ministerial duty before the time for its performance has arrived. The court will not anticipate a refusal of an officer to do his duty, even though he may have threatened or pre-determined not to perform it. There can be no omission, neglect or refusal to perform a duty where the time has not yet arrived for its performance. (State vs. Harvey, 3 Kan., 88.]

§ 334. We have seen that mandamus does not lie to compel admission to an office, and we have also seen that it does lie to compel the proper authority to issue a commission to the person declared elected. There is no conflict between these two rules. The granting of the writ to compel admission to the office would have the effect of determining the title thereto, but this is not the effect of the writ, when granted to compel the issuance of the certificate of election. This certificate, when issued by virtue of a mandamus, has precisely the same force as if issued without such writ. In either case it is only prima facie evidence of title to the office, and may be attacked and overthrown by other proof. (High on Extraordinary Remedies, Sec. 61. State vs. Gibbs, 13 Fla., 55. People vs. Hilliard, 29 Ill., 419. In re Strong, 20 Pick., 484. People vs. Rivers, 27 Ill., 242. Brower vs. O'Brien, 2 Ind., 423.)

§ 335. In People vs. Hilliard, (supra,) it was held that it is no objection to the granting of the writ to compel the issuance of a certificate of election, that the respondent has already issued certificates to other parties. The court said; "We do not pro