OPINION OF
COKE, C. J.,DISSENTING IN PART AND CONCURRING IN PART.
In all that has been said by my associates in reference to reserved questions numbered 3 and 4 I fully concur. The alternative Avrit of mandamus should be made peremptory. The petitioners Kumalae and Pacheco having received the highest number of votes were each entitled to receive from the respondent Kalauokalani, the city and county clerk, a certificate of election as supervisor of the City and County of Honolulu. The duties of the clerk are purely ministerial and are so plainly expressed in section 1686 R. L. 1915 that it would seem there should be no honest difference of opinion in respect thereto. But in the face of his duties, clearly defined by statute, the clerk has attempted to clothe himself with judicial functions and arrógate to himself the right to sit in judgment and determine judicially whether the two petitioners are eligible to hold the offices to which they were elected by popular vote — an unwarranted assump*18tion of power which Avas clearly ultra, vires — the usurpation of authority AAdiich calls for prompt intervention by judicial authority. The clerk has attached to his return certain communications. One of these is a letter addressed to the respondent Pacheco, signed by the attorney general of the Territory, holding that Pacheco was not eligible for election to, or service on, the board of supervisors of the City and County. Nothing, however, is contained in this communication having reference to the duties of the clerk of the City and County of Honolulu and the same is in no wise pertinent to the issue. Another communication is addressed to the clerk and signed by J. H. Fisher, avIio purports to AAufite as a citizen of the City and County of Honolulu, demanding that certificates of election be issued to EdAvard P. Fogarty and William J. Sheldon. As neither Fogarty nor Sheldon was elected to the office for which certificates of election Avere demanded by Fisher this communication should have been ignored by the clerk. Another letter purporting to come from the city. and county attorney is attached to the return. It advises the clerk that Pacheco and Kumalae are not eligible to hold the office of supervisors of the City and County of Honolulu and that certificates of election cannot be issued to them and further advises the clerk to issue certificates of election to Fog-arty and Sheldon. This communication to the clerk counsels him to disregard his duties plainly prescribed by statute and is so palpably erroneous and so at variance with the provisions of the statute as to render it utterly worthless as a justification for the failure on his part to perform his duties as prescribed by law.
Upon the first reserved question, that is to say: “1. In this case does the folloAving question-arise, 'namely: was the petitioner, M. C. Pacheco, at the time of the election held on June 3, 1919, for supervisors of the City *19and County of Honolulu ineligible for election as one of said supervisors by reason of the fact that at the election held on November 5, 1916, he was duly elected as a member of the senate of the legislature of the Territory of Hawaii to serve for the term of four years?” I am unable to agree with my associates. It Avas not within the proA'ince of the city and county clerk at the time demand Avas made upon him by the petitioners for the delivery' to them of certificates of election to the office to Avhich they Avere elected to question their eligibility, but after the cause reached the circuit court it was alleged in the return of the respondent, for reasons therein set forth at length, that the petitioners were ineligible for election. This became solely an issue of law, the facts being undisputed, and as long as the question Avas properly raised in the circuit court I think it became the duty of that court to determine this issue. If as a matter of law the petitioners are ineligible certificates of election would avail them nothing and the entire proceedings Avould be rendered abortive. If on the other hand petitioners are eligible why not so decide and dispose of the matter? I appreciate the force of what is said to the contrary and I fully recognize that as a general rule title to an office cannot be determined in a proceeding by mandamus, but this, like most rules, has its exceptions, and where as in this proceeding an issue of laAv has been properly raised questioning the eligibility of the petitioners to hold the office for which they are proceeding by mandamus to require the issuance of certificates of election that issue should as a matter of public policy, if for no other reason, be determined. As said in Atchinson, County Judge, v. Lucas, 83 Ky. 451, “When it appears that one is constitutionally ineligible to an office to which he has been elected his application for a writ of mandamus requiring the county judge to *20permit him to qualify should be refused,” and again in the same opinion, “It is well settled that the title to an office cannot be determined in a proceeding by mandamus. * * * This rule, however, must have its exceptions and in a case Avhere the person applying is a citizen, has all the requisites of age, residence, etc., prescribed by the constitution and still not entitled to hold an office, why should the county judge permit her to qualify and enter upon the discharge of its duties?”
The effect of the majority opinion is to overrule People v. Board of Canvassers, 129 N. Y. 360, where it was held that a writ of mandamus should not be granted upon the application of an individual to compel the issuance of a certificate of election to one Avho has no right under the constitution to hold the' office, and in that opinion the court proceeds to give utterance to the following strong language which is peculiarly applicable to the case at bar: “The appellants claim that he (appellee) was ineligible under this constitutional provision, and whether he was or not is the important question now to be determined. The question has attracted much public attention: it is fairly involved in this case and the interests of the public require that we should meet and determine it if it is within our judicial competency to do so. It is a pure legal question, depending upon undisputed facts, and it would be quite unfortunate to have this case go through all the courts and to leave the most important and vital matter in it undecided.” It is inferred in the majority opinion that this court in Harris v. Cooper, 14 Haw. 145, and in Kanealii v. Hardy, 17 Haw. 1, overruled People v. Board of Canvassers, supra. Whether such is the case depends upon the individual interpretation of those opinions. Whatever might have been the intention of this court in that respect, in Harris v. Cooper, the opinion in People v. Board of Canvassers *21was referred to as “perhaps the most instructive case that has come to our notice in this connection.” And for a case holding contrary to Harris v. Cooper see Wachter v. McEvoy, 93 Atl. 987. I agree that the facts in United States v. Fisher, 222 U. S. 204, and Duncan Townsite Co. v. Lane, 245 U. S. 308, are dissimilar to those in the case before us, but it is nevertheless true that some of the principles and much that is said in those opinions do apply here.
I am therefore of the opinion that the question of the eligibility of Messrs. Pacheco and Kumalae is an issue under the pleadings that should be determined by the circuit court and that reserved question No. 1 should be answered in the affirmative.
This conclusion necessarily calls for an answer to reserved question No. 2, that is to say, “were the petitioners at the time of the election of June 3, 1919, eligible for election as supervisors of the City and County of Honolulu.” This question in my opinion should also be answered in the affirmative.
A discussion of this subject would necessitate a lengthy opinion and the citation and review of many authorities. The views of a single justice of this court could not judicially determine the matter nor in any way be binding upon the court, hence I shall refrain from a discussion of the subject.