Show THAT PERE peremptory MANDAMUS tim THE final decision of judge mckean in this matter deserves more than a passing notice we published the opinion substantially as it was delivered on thursday now that the first agony is over we propose a brief rev review jew 0 of f the history of this case and without assuming to be authority on ori the matter express the opinion tsat that we hold hoid on the subject it shall be our endeavor to treat this question with fairness yet at the same time with earnestness and present the facts as they appear to us by the record it is an admitted fact that judge has been for years the acting probate judge of tooele thoele county also that he be was mr nir browns competitor in the election contest last august it is also a fact tha of the whole number of votes cast or represented to have been ca cat cast t brown secured a majority whether the clerk of the probate court did the ministerial act require required d bylaw by law of him t that hat is give brown a certificate of election we cannot say as one side affirms and the other denies it but it matters not when viewed from a legal sta standpoint endpoint whether he did or did not As to the action of the treasurer in refusing to approve browns bond it stands on t the he same footing with the governors action in issuing a commission and neither nets nem affect the question under consideration now upon this state of facts what is the position of the respective parties Itow berry in possession of an office for which he printa fa yaco yace defeated at the last election but still holding over by virtue of the law which says that he shall shail hold until his successor is elected and qualified and und brown claiming prima facie that he be was legally elected and demanding to be admitted to Bowber rys place this then was the position po of the parties at the time the application was made for the writ now on this state of facts was mandamus tile tiie proper remedy we shall assume two propositions of law to be correct first that the title to an office cannot be litigated in an application for a mandamus for where there is any doubt the cour court will twill not interfere in this way but put the tire parties in the finst first instance to an information in the nature of a quo second secor id that in a quo carranto warranto war proceeding the court can go behind both the certificate of election and und the commission of the governor and det determine armine the legality of the votes cast for the respective candidates and for whom as a matter or of fact the majority of the votes were given or intended to be given which is tho the only way that the question of title c can n be settled now then if brown really was elected then Itow berry was not and is clearly a usurper and being a usurper was mandamus the proper remedy to to be invoked by brown ye say not hot the statute provides fr bor exactly thaC klud of cases in chapter 5 of title 8 of the practice act and allows the court iu in its discretion to impose a fine nofu exceeding if tile the usurper Is id found guilty this then if we are correct in our statement of the law was the proper course to be pursued by nin air brown and it Js is no answer to this to say chatan appeal would lie and ano the tile term of office elapse before it final judgment could be had for in each case ease the court lil lii still decide who the lelal officer was this is an extra judicial view of the case and is sufficiently answered by saying baying that it 1 is not the law but if a further answer were needed it if i is to be h had ad in lla the fact that the emoluments of an office are coincident to and follow the legal title and that the fine which the court can in n addition to this as a penalty is intended to deter usurpers usurp ers from illegal practices and has had been considered by the legislature as ample to accod that pur purpose pos che the fact that one outset set of officers are in and another set heet of df officers out wt ought not to be permitted to weigh at ar all in the legar legah determination ri of tile the case and aud it IL is in this fact that is to be found the beginning of the series of errors into which the court has been betrayed in the course of this proceeding the assumption of the court t thal hat thereas there is n controversy between the church and the state is unfounded in lil fact if it were the case the dignity of the bench rt quiles jeunea the presiding jud judge 9 0 to fol low the mandates of we the lsalone LW alone and if the law is deflective delee delec tive leave that error t to 0 be corre corrected ete ett d by the law making power the people eue ale oni only y nominally interested in the question orr of who is the person righta rightfully illy entitled to discharge the thu duties of a an n office lor for quo carranto warranto war is practically a civil action by the code in which in the name and buder under the cloak of the commonwealth the real parties in interest the respective candidates litigate their respective claims and it has hwa been decided by courts of the highest respectability that it stands precisely upon u the same footing as any other civil action under the code with th the e exception i that hat a fino fine 6 ne may chy be imposed it in 1 the discretion of the court upon 11 one who is really guilty of exer exercising eis cis the functions of an office to alich he has no legal we are therefore of opinion that the action taken by the liberal candidates candid ates atea for office is all wrong and that there was no nece necessity jur fur the indecent haste that was was manifested to get gol possession ol the books papers and paraphernalia of the office of probate judge |