pose to turn the others out of office on an application for mandamus. They are not parties to this adjudication." On the contrary, however, it was held in Magee vs. Supervisors,, (10 Cal., 376,) that if the canvassers have performed their duty, and in the exercise of their discretion have declared the result of the election adversely to the claimant, he cannot have mandamus to compel the issuing of a certificate to him, his remedy being by proceedings in quo warranto. And this would seem the better rule since the issuing of a second certificate under the order of the court, as we have seen, does not affect in any way the question of title to the office, and it is desirable that the claimant should be put to his remedy by quo warranto at once, and in the first instance to the end that the case may be speedily disposed of upon the merits.

§ 336. It has also been held that mandamus is the proper remedy to compel a registering officer to register as voters the names of persons properly qualified. [Davies vs. McKeely, 5 Nev., 369.)

§ 337. Where an election is held and no question is made as to the result, the inspectors of the election have no right to consider the question of the validity of such election, but must certify the result and upon their failure or refusal to do so, mandamus will lie to compel them to perform this duty. The writ of mandamus, however, even when used to place a person in possession of an office, confers no right. It merely places him in possession of the office to enable him to assert his right which in some cases he could not otherwise do. [Brower vs. O'Brien, 2 Ind., 423. Moses on Mandamus, 90.

Kister vs. Cameron, et. al., 39 Ind., 488.) A few cases may be found in which the writ of mandamus has issued to the proper certifying or returning officer, commanding him to certify the election of a particular person by name, but this is believed to be an improper, or at least an unprovident use of the writ. It should be issued, if at all, simply to compel a return or certification of the result, as shown by the proper returns, but the court issuing the writ should not assume to determine, and in advance, who by such returns is entitled to the office. As we have heretofore observed, the proper use of the writ is to compel, but not control, action by the returning officers. If the person actually elected is not returned and certified to be elected, his remedy is plain, and it is desirable that all questions connected with counting the votes and declaring the result should in the first instance remain with the officers of election.

§ 338. In Kister vs. Cameron, et al, supra, it seems that no question was made as to the fact that the relator had received a majority of the votes cast. The inspectors declined to certify, on the ground that in their opinion the election was void for some reason not stated in the report of the case. Mandamus was granted on the ground that it was not the province of the inspectors to inquire as to the validity of the election, that question being for another tribunal, but simply to cast up the returns, declare the result, and issue their certificate as provided by the plain terms of the statute, and this they were required to do. We gather from all the authorities the following rules:

1. If the officers of election refuse or fail to act

mandamus will lie to compel them to discharge their duties as required by statute, but in such cases the writ will not, as a general rule, command such officers to certify that any particular person has been elected.

2. If there are two or more persons claiming the office, the writ will never issue to require such officers to declare either one elected, but only to command them to execute the duties and exercise the functions conferred upon them by law.

3. If it clearly appears that a particular person has received the majority of the votes cast, and that no question is made upon this point, perhaps mandamus may issue to compel such officers to certify the election of that person by name, although this is substantially the same thing as to order them to certify the result according to law, and therefore the latter form will always be found to be the best.

§ 339. Where the statute provides that the election of a public officer may be contested by "any candidate or elector," the person instituting such contest must aver that he is an elector, or that he was a candidate for the office in question. This must appear on the face of the record, and it is not enough that the contestant offers proof that he is an elector. The incumbent is not bound to answer or take notice of a complaint which does not contain this averment. (Edwards vs. Knight, 8th Ohio, [Hammond,] 375.)

§ 340. An injunction will not lie to restrain the proper officer from recording the abstract of the vote of a county, upon the question of removing the county seat, because of frauds and illegalities in con

ducting the election. The remedy for such wrongs is by means of a contest, as provided by law. (Peck vs. Weddell, 17 Ohio St., 271. Ingersall vs. Berry, 14, ib., 315.) (ƒ)

§ 341. Notice is absolutely essential to the validity of a proceeding to oust the incumbent of an office, and proceedings instituted and carried on without notice to the incumbent, should be treated as absolutely null and void. By notice here is not meant any particular form or character of notice, but simply that some kind of notice is essential. It has accordingly been held by the court of common pleas of Philadelphia, that where a member of a municipal legislative body has been expelled without notice or hearing, a mandamus will be granted to compel such body to restore him until he has had notice and a hearing. (Duffield's Case. Brightley's Election Cases, 646.) It was also held in the same case, that where the council has determined after notice and hearing, that the member has incurred a disqualification by accepting a federal office, the court will not interfere, for the reason that the council has power and jurisdiction to judge of the qualifications of its members.

§ 342. Prior to the adoption by Congress, of any statute regulating the mode of procuring evidence

(ƒ) An adequate remedy will always be found either at law or in equity, for frauds perpetrated against the purity of elections. If a result has been secured by fraud, and the statute has provided no mode of redress, it by no means follows that no redress can be had. The right of any person claiming to exercise any public function or authority under a fraudulent election, may be tested by proceedings in quo warranto. And doubtless if the election is to decide upon the question of levying a tax, or the adoption of a municipal charter, or the like, all proceedings under it may be enjoined upon proof of such frauds, as will render such election void.

in contested election cases, the practice was conformed as far as possible to the laws of the state, from which any case might be brought. (Botts vs. Jones, 1 Bartlett, 73.) And there is no doubt but either house of Congress should regard the laws of the states as rules of decision, upon any point not covered by congressional statute or federal constitution. (See case of Tennessee Representatives, 42d Congress.)

§ 343. The act of Congress approved 19th Feb'y, 1851, "to prescribe the mode of obtaining evidence in cases of contested elections," provides among other things that the contestant shall "within thirty days after said election, give notice in writing to the member whose seat he intends to contest and in such notice shall specify particularly, the grounds on which he relies in said contest." A good deal of discussion has arisen as to what is to be understood by the words "specify particularly the grounds on which he relies." It is evident, however, that these words are not easily defined by any others. They are as plain and clear as any terms which we might employ to explain them. Cases have arisen, and will again arise, giving rise to controversy as to whether a given allegation comes up to the requirement of this statute, and it must be for the House in each case to decide upon the case before it. It may be observed however, that this statute should receive a reasonble construction-one that will carry out, and not defeat its spirit and purpose. And perhaps the rule of construction, which will prove safest as a guide in each case is this: A notice which is sufficiently specific to put the sitting mem