Kokes v. State ex rel. Koupal

Ryan, C.,

dissenting.

I dissent from the views expressed by Harrison, C. J., for the reasons I shall now briefly state. The alternative writ of .mandamus Avhich issued from the district court of Valley county required the county clerk to issue to the relator a certificate showing Ms election to the office of clerk of the district court of said county, or show cause why such certificate should not issue. The return to this Avrit presented several issues, but on the trial the stipulations of counsel established all the facts entitling the relator to the writ prayed, except, as contested by the respondent, that, as Valley county contained less, than 8,000 inhabitants, there was no independent office of clerk of the district court in that county. As the respondent was county clerk he was ex-officio clerk of the district court, if there were less than 8,000 *703inhabitants in Valley county. His denial of the existence of that number of inhabitants presented the issue whether he or the relator was clerk of the district court of said county. In effect, as I understand the case, the controversy is as to the title to a public office, and it has been repeatedly held that the title to such an office cannot be tried by mandamus. (Anderson v. Colson, 1 Neb. 172; State v. Plambeck, 36 Neb. 401; McMillin v. Richards, 45 Neb. 786.) It was the duty of the respondent to issue the certificate showing the relator’s election in accord-, anee with conceded facts. The question attempted to be litigated in this ease should, I think, be presented at the proper time and by proper parties in quo warranto proceedings. (Compiled Statutes, ch. 71; State v. Plambeck, supra; State v. Jaynes, 19 Neb. 164.) The judgment of the district court, therefore, in my opinion should be affirmed. ' °