Surrender of Indicia, etc., of Office 186. In General. It is the duty of every public officer, at the expiration of his official relation, to surrender to his successor the property and insignia of the office which the law commits to his custody. This duty is ministerial merely, no matter on what officer it devolves, and at common law its performance is enforceable by mandamus.11 If the relator, after he has succeeded, by quo warranto, in ousting a wrongful incumbent, is not voluntarily admitted to the office, mandamus is the proper remedy to compel the incumbent to deliver up the records and other equipment of the office. 12 The right of the incumbent of an office to hold over after the expiration of his term exists only in cases where there is no legally elected and qualified successor,13 and therefore when there is a duly elected and qualified successor, the incumbent can have no such color or claim of right to the office as will prevent mandamus from issuing to compel him to surrender the insignia, etc., of the office.14 So where the defendant had duly resigned his office and the relator had been appointed in his place he may be compelled by mandamus to surrender the insignia, etc., of the office.15 The rule that mandamus will lie to compel the surrender of an office has been said to extend to the case of a governor who wrongfully holds over and refuses to surrender the office to his duly elected successor.16 On the other hand, mandamus proceedings will not compel the delivery up of the insignia of office when in reality the object is to test the title to the office; if the title is the real question in issue the courts cannot interfere by mandamus but must remit the parties to quo warranto or other appropriate legal remedy; 17 and it has been held that 11. State v. Crawford, 28 Fla. 441, 10 So. 118, 14 L.R.A. 253; State v. Johnson, 30 Fla. 433, 11 So. 845, 18 L.R.A. 410; State v. Johnson, 35 Fla. 2, 16 So. 786, 31 L.R.A. 357; People v. Kilduff, 15 Ill. 492, 60 Am. Dec. 769; Couch v. State, 169 Ind. 269, 82 N. E. 457, 124 A. S. R. 221; American Railway-Frog Co., 101 Mass. 398, 3 Am. Rep. 377; State v. Sherwood, 15 Minn. 221, 2 Am. Rep. 116; State v. Smith, 43 Okla. 231, 142 Pac. 408, L.R.A.1915A 832; Stevens v. Carter, 27 Ore. 553, 40 Pac. 1074, 31 L.R.A. 342; Fitzhugh v. Custer, 4 Tex. 391, 51 Am. Dec. 728; State v. Oates, 86 Wis. 634, 57 N. W. 296, 39 A. S. R. 912. Notes: 12 Am. Dec. 28; 60 Am. Dec. 773; 89 Am. Dec. 735; 31 L.R.A. 343 et seq., 368; 35 L.R.A. (N.S.) 528; L.R.A.1915A 833. 12. Albright v. Territory, 13 N. M. 64, 79 Pac. 719, 11 Ann. Cas. 1165. 13. See PUBLIC OFFICERS, as to term of office generally. 14. Couch v. State, 169 Ind. 269, 82 N. E. 457, 124 A. S. R. 221; Stevens v. Carter, 27 Ore. 553, 40 Pac. 1074, 31 L.R.A. 342; State v. Oates, 86 Wis. 634, 57 N. W. 296, 39 A. S. R. 912. Note: 31 L.R.A. 344. 15. Note: 31 L.R.A. 345. 16. Goff v. Wilson, 32 W. Va. 393, 9 S. E. 26, 3 L.R.A. 58. See supra, par. 121 et seq., as to mandamus against the governor generally. 17. People v. Olds, 3 Cal. 167, 58 Am. Dec. 398; State v. Johnson, 30 if the statute on which the relator's title and appointment to the office in question is based is unconstitutional mandamus to compel the surrender of the office should not issue.18 The commission or certificate of election to the office in dispute and qualification thereunder is prima facie title to the office and the courts will not in a mandamus proceeding to compel the surrender of the office to the holder go behind the commission or certificate.19 The statutory summary remedy to recover possession of the books, records, etc., of a public office are generally regarded as cumulative and not as necessarily abolishing the use of the common law remedy by mandamus; 20 still where the statutory remedy is under the circumstances of the case entirely adequate, this has been considered a sufficient reason for denying the writ. The proceedings to compel the surrender of the insignia of the office are properly brought on the relation of the attorney general without making the rightful incumbent a party, as the purpose of the action is to enforce the performance of a public duty the interest in which is common to the whole community. 187. Prior Position of Respondent as Officer.-According to the better view, if the possession of the books, records, etc., of an office was not acquired by the respondent by virtue of his position as a public officer de facto or de jure, mandamus will not lie to compel him to surrender the same. And it has been held that mandamus will not lie to compel a private person to deliver the pleadings, papers, and files in a case pending in a certain court to one who claims to have been the de jure and de facto clerk of said court since its organization, although it be alleged that such person wrongfully obtained possession of said papers and files by pretending to act as the clerk of said court, under claim of the right to said office. On the other hand, to authorize the issuance of mandamus to compel the surrender of the records, etc., of the office it is not necessary, it seems, that the respondent should have occupied and secured the property sought to be recovered as an incumbent de jure; it is sufficient that his possession was acquired while acting as an incumbent Fla. 433, 11 So. 845, 18 L.R.A. 410; 342; State v. Oates, 86 Wis. 634, 57 Note: L.R.A.1915A 833. 1. People v. Olds, 3 Cal. 167, 58 Notes: 31 L.R.A. 363; 1 L.R.A. Am. Dec. 398. (N.S.) 588. 18. State v. Jones, 66 Ohio St. 453, 64 N. E. 424, 90 A. S. R. 592. 19. State v. Johnson, 30 Fla. 433, 11 So. 845, 18 L.R.A. 410; State v. Smith, 43 Okla. 231, 142 Pac. 408, L.R.A.1915A 832; Stevens v. Carter, 27 Ore. 553, 40 Pac. 1074, 31 L.R.A. Note: 31 L.R.A. 362. 2. State v. Johnson, 30 Fla. 433, 11 So. 845, 18 L.R.A. 410. 3. Notes: 31 L.R.A. 361; 35 L.R.A. (N.S.) 528. 4. State v. Cline, 29 Okla. 157, 116 Pac. 767, Ann. Cas. 1913A 481, 35 L.R.A. (N.S.) 527. de facto. And according to the view taken in some cases it seems that mandamus will lie against one who obtains the records, etc., of an office to compel their surrender though the possession was obtained wrongfully or clandestinely, and not by reason of his occupancy of the office even as an officer de facto." 188. Sufficiency of Title of Relator Generally.-A prima facie right or title on the part of the relator to the office is all that is necessary, or in fact involved, in mandamus proceedings to compe! the surrender of the insignia, etc., of the office. This is so for the reason that a prima facie title to a public office confers a right to exercise its functions, and a right to the possession of the insignia and property thereof, and upon such prima facie title the court will compel the delivery of the insignia and property, in order that the functions and duties of the office may be exercised. And for this reason the judgment directing the defendant to surrender the office is not conclusive in subsequent proceedings to test the actual title to the office. On the other hand, a clear prima facie right to the office must be shown.9 189. Ineligibility to Office.-Where a statute provides that an incumbent of an office shall hold the office until his successor is elected and qualified this gives him a colorable title after the expiration of his original term, and if it is found in a proper proceeding that his alleged successor is ineligible, he would have a private interest in the term which would entitle him to hold over.10 On the other hand, when a commission or certificate of election has been issued to another, who has qualified thereunder, it is the duty of an incumbent of a public office, at the expiration of his term, to surrender the office to his successor; and should he then desire to contest the eligibility, election, or qualification of the person so holding the commission or certificate, he may do so by proceeding in the manner prescribed by law for determining contested claims to office, but he cannot do so in mandamus proceedings to compel the surrender of the office.11 5. Notes: 31 L.R.A. 361; 35 L.R.A. (N.S.) 529. 6. Notes: 31 L.R.A. 361; 35 L.R.A. (N.S.) 529. 7. State v. Johnson, 30 Fla. 433, 11 So. 845, 18 L.R.A. 410; State v. Johnson, 35 Fla. 2, 16 So. 786, 31 L.R.A. 357; State v. Sherwood, 15 Minn. 221, 2 Am. Rep. 116. Note: 31 L.R.A. 349. Note: 31 L.R.A. 349, 362. 10. Taylor v. Sullivan, 45 Minn. 309, 47 N. W. 802, 22 A. S. R. 729, 11 L.R.A. 272; Stevens v. Carter, 27 Ore. 553, 40 Pac. 1074, 31 L.R.A. 342. 11. State v. Johnson, 30 Fla. 433, 11 So. 845, 18 L.R.A. 410; State v. Johnson, 35 Fla. 2, 16 So. 786, 31 L.R.A. 357; Couch v. State, 169 Ind. 269, 82 N. E. 457, 124 A. S. R. 221; 8. State v. Oates, 86 Wis. 634, 57 State v. Sherwood, 15 Minn. 221, 2 Am. Rep. 116; Stevens v. Carter, 27 190. Demand and Refusal.-Ordinarily in order that a writ of mandamus may issue, there must have been a refusal to do that which was the object of the writ to enforce, either in direct terms or by circumstances distinctly showing an intention in the party not to do the act required,12 and this rule will ordinarily apply where the surrender of the insignia, etc., of an office is sought to be enforced by mandamus.18 Restoration after Removal 191. In General.-Where the attempted removal of an officer is void, mandamus has been upheld as a proper remedy to compel his reinstatement or restoration.14 And though it appears to be the view of the English judges, when an officer has been merely suspended from duty, but not removed from office, that mandamus does not lie to restore him to the active exercise and discharge of his official powers and duties, 15 the American courts hold otherwise, as the same reasons given to sustain this remedy in cases of removal apply with equal force where the occupant of an office has been illegally suspended.16 In case of the wrongful removal of an officer a suit for his salary is not an adequate remedy, because that does not restore him to the office, and the public is interested in having official duties. performed by those whose duty it is to perform them, and, if they are ousted without authority, it is in the public interest and conducive to peace and good government that they shall be speedily restored by a mandamus.17 12. See supra, par. 37. 13. Note: 31 L.R.A. 348. 14. State v. Hempstead, 83 Conn. 554, 78 Atl. 442, Ann. Cas. 1912A 927; Delahanty v. Warner, 75 Ill. 185, 20 Am. Rep. 237; Metsker v. Neally, 41 Kan. 122, 21 Pac. 206, 13 A. S. R. 269; Prince v. Skillin, 71 Me. 361, 36 Am. Rep. 325; St. Louis County Court v. Sparks, 10 Mo. 117, 45 Am. Dec. 355; State v. Atlantic City, 52 N. J. L. 332, 19 Atl. 780, 8 L.R.A. 697; People v. Best, 187 N. Y. 1, 79 N. E. 890, 116 A. S. R. 586, 10 Ann. Cas. 58; Doyle v. Raleigh, 89 N. C. 133, 45 Am. Rep. 677; State v. Baldwin, 77 Ohio St. 532, 83 N. E. 907, 12 Ann. Cas. 10, 19 L.R.A. (N.S.) 49; Chace v. Providence, 36 R. I. 331, 89 Atl. 1066, Ann. Cas. 1916C 1257; Geter v. Campbell-Town Warehouse Tobacco Inspection, 1 Bay (S. C.) 354, 1 Am. Dec. 621; State v. Hewitt, 3 S. D. 187, 52 N. W. 875, 44 A. S. R. 788, 16 L.R.A. 413; Milliken v. Weatherford, 54 Tex. 388, 38 Am. Rep. 629; Dew v. Sweet Spring Dist. Court, 3 Hen. & M. (Va.) 1, 3 Am. Dec. 639; Bunting v. Willis, 27 Grat. (Va.) 144, 21 Am. Rep. 338; Schmulbach v. Speidel, 50 W. Va. 553, 40 S. E. 424, 55 L.R.A. 922. Notes: 89 Am. Dec. 732; 140 A. S. R. 197; 1 L.R.A. (N.S.) 588; 19 L.R.A. (N.S.) 53; 12 Ann. Cas. 14; Ann. Cas. 1912A 930. As to mandamus to restore an attorney wrongfully disbarred, see infra, par. 264. 15. Note: 19 L.R.A. (N.S.) 79. 16. Metsker v. Neally, 41 Kan. 122, 21 Pac. 206, 13 A. S. R. 269. Notes: 19 L.R.A. (N.S.) 79; 12 Ann. Cas. 16. 17. State v. Baldwin, 77 Ohio St. 532, 83 N. E. 907, 12 Ann. Cas. 10, 19 L.R.A.(N.S.) 49. 192. Effect of Appointment or Election of a Successor.-In some cases it is held that the fact that an attempt has been made by election or appointment to fill the office from which the relator was illegally removed and the functions of the office are being exercised by such appointee does not prevent the issuance of the writ.18 And it has been held that the person appointed to fill the alleged vacancy caused by the wrongful removal is not a necessary party to the proceedings to compel the relator's restoration to office.19 Other authorities, however, take the view that when the office from which an official has been ousted has been filled by an election or appointment giving an apparent color of title, and the successor is actually in the office, mandamus will not lie to restore the ousted official until the title to the office has been settled by quo warranto proceedings, or other statutory substitute.20 One of the controlling reasons why mandamus will not issue to restore to an office one claiming title to it when another claims title under color of right and is in possession is because in such proceeding the adverse claimant has no opportunity to be heard in defense of his title; 1 still it has been held that where an application for a writ of mandate to compel the applicant's reinstatement in an office from which he claims to have been illegally removed is made, and the incumbent of the office and others intervene, the intervention does not destroy their right to insist that the title to the office cannot be tried on mandamus. On the other hand, where the ouster is absolutely void, clearly without legal warrant or in total disregard of law, and the successor obtains not even a color of title to the office, or the proceedings are plainly had in bad faith and hence are absolutely void, the appointment or election of the successor is a mere nullity, and mandamus will lie to restore one to an office from which he was illegally ousted. An occupant of an office having no color of title cannot claim the office against one ousted from it and having a clear legal title to it. The title de jure draws to it possession de facto, and mandamus is 18. Metsker v. Neally, 41 Kan. 122, 21 Pac. 206, 13 A. S. R. 269; State v. Atlantic City, 52 N. J. L. 332, 19 Atl. 780, 8 L.R.A. 697; Dew v. Sweet Spring Dist. Court, 3 Hen. & M. (Va.) 1, 3 Am. Dec. 639; Schmulbach v. Speidel, 50 W. Va. 553, 40 S. E. 424, 55 L.R.A. 922. Notes: 19 L.R.A. (N.S.) 60; 12 Ann. Cas. 17; 7 Eng. Rul. Cas. 330. 19. State v. Atlantic City, 52 N. J. L. 332, 19 Atl. 780, 8 L.R.A. 697. 20. State v. Hempstead, 83 Conn. 554, 78 Atl. 442, Ann. Cas. 1912A 927; State v. Barker, 116 Ia. 96, 89 N. W. 204, 93 A. S. R. 222, 57 L.R.A. 244; St. Louis County Court v. Sparks, 10 Mo. 117, 45 Am. Dec. 355; People v. New York Infant Asylum, 122 N. Y. 190, 25 N. E. 241, 10 L.R.A. 381; People v. Board of Police Com'rs, 174 N. Y. 450, 67 N. E. 78, 95 A. S. R. 596. Notes: 1 L.R.A. (N.S.) 588; 19 L.R.A. (N.S.) 58; 12 Ann. Cas. 17; Ann. Cas. 1912A 930. 1. State v. Hempstead, 83 Conn. 554, 78 Atl. 442, Ann. Cas. 1912A 927. 2. People v. Board of Police Com'rs, 174 N. Y. 450, 67 N. E. 78, 95 A. S. R. 596. |