His Honor undoubtedly proceeded under the view that he had, under the provisions of Sec. 5, Chap. 135, Laws 1895, such a general supervisory power over the Clerks as was conferred upon the Judges of the Supreme and Superior Courts in Sec. 7, Chap. 159, Laws 1895. This was a mistaken idea of his power. Sec. 7 of the Election Law of 1895 not only gave to the Judges a general supervisory control over the clerks, but it prescribed all the machinery necessary for compelling them to perform their duties. A rule might issue, in the (237) first instance, upon the Judge's own motion or upon the affidavit of an elector, to be followed by other rules from time to time as the occasion might require. Sec. 5, Chap. 135, Laws 1895, authorized the Judge presiding in the district, or the resident Judge, to appoint two additional county commissioners upon its being certified to him by the Clerk of the Court that the petition was properly signed, but it did not confer upon the Judge any unusual power, any power to proceed by a rule in the first instance to compel the Clerk to act. The present proceeding should have been commenced by mandamus, and the Clerk's conduct (which it seems was arbitrary and contumacious) inquired into the regular way. It was commenced upon affidavit and rule, and ought to have been dismissed upon the motion of the defendant. We do not pass upon the power of the Judge where the Clerk refuses to act in cases like the one before us, to find the facts and to appoint the commissioners when the petition is properly signed. The matter of contempt is the only matter before us, and we are of the opinion that there was error in the judgment and that the same ought to be
Reversed.
Cited: Lyon v. Comrs., post, 241, 252. *Page 163