(dissenting). I dissent. In my opinion mandamus does not lie under the facts in this case. In this state “the writ of mandamus may be issued by the Supreme Court and district courts to any inferior tribunal, corporation, board or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” (Section 8457, C. L. 1913.) The writ of mandamus cannot be employed to supersede legal remedies, but is intended to furnish a remedy where no adequate legal remedy is provided. Strauss v. Costello, 29 N. D. 215, 150 N. W. 874; § 8458, C. L. 1913. In this case the defendant Lawrence Larson, while county treasurer of Burke county, made certain time deposits of funds in his hands as such county treasurer. Among others he made such deposits with the defendant bank, and received therefor time certificates of deposit. It is undisputed that, at the time his successor in office qualified, said Larson turned over to him everything then in his possession as county treasurer, including such certificates of deposit. In this case it is sought to have the said Lawrence Larson and the bank which received such deposits and issued such time certificates compelled by writ of mandamus to pay over at once the moneys so deposited. In the petition herein the petitioner prays that—
“An alternative writ of mandamus issue out of and under the seal of. this court, directed to the said Lawrence Larson and to his agent, First *1159National Bank of Bowbells, commanding them forthwith to turn over and deliver to the said J. R. Jensen, the duly elected, qualified, and acting treasurer of Burke county, N. D., the sums of money and funds rightfully belonging to the said J. R. Jensen, as treasurer of Burke county, N. D., which are so wrongfully and unlawfully withheld and retained by the said Lawrence Larson and the said First National Bank of Bow-bells.”
The alternative writ issued upon the petition states:
“I do command and enjoin you, Lawrence Larson, and First National Bank of Bowbells, that immediately upon the receipt of this writ, to turn over and deliver to the said J. R. Jensen the duly elected, qualified, and acting county treasurer of Burke county, N. D., the sum of $r 9,000, being the funds and money rightfully belonging to .the said J. R. Jensen, as treasurer of Burke county, N. D., or in default thereof to show cause,” etc.
It is not contended that the said Lawrence Larson did not at the expiration of his term of office turn over all the records and property held by him as county treasurer to his successor in office. Gn the contrary, it is undisputed that the said Larson did turn over to his successor in office everything in his possession as county treasurer, including the •certificates of deposit which he had received from the different banks. It is also undisputed that the present county treasurer has collected a large number of such certificates of deposit when and as they became due. Larson has had no possession of or control over any of the funds which he formerly held as county treasurer or over the certificates of deposit at any time since his term of office expired. Hence this is not a case where a county treasurer at the expiration of his term refuses to turn •over to his successor in office either property or moneys in his possession or under his control, and mandamus is invoked for the purpose of compelling him to surrender the same to his successor, and authorities dealing with that situation are not applicable here. The real object of this proceeding is to compel a county treasurer, whose term of office has expired, to make restitution of certain moneys, which he, while in office, placed on time deposit, and to compel the bank in which such time deposit was made to pay over the funds so deposited in disregard of the terms of the certificates of deposit. In other words, it sought by mandamus to undo that which has been done. Manadmus is a writ to compel action, and not to undo that which has been done. 19 Am. & Eng. Ency. L. p. 743; 13 Ency. Pl. & Prac. 497; Merrill on Mandamus, §§ 42, *116043; Gow v. Bingham et al., 57 Misc. Rep. 66, 107 N. Y. Supp. 1011; State v. Jacobs, 103 App. Div. 86, 92 N. Y. Supp. 590; State v. Bowman, 66 S. C. 140, 44 S. E. 569; State v. Ross, 39 Wash. 399, 81 Pac. 865; State v. Willett, 117 Tenn. 334, 97 S. W. 299.
In Gow v. Bingham et al., supra, the court said:
“In the absence of special statutory authority, a writ of mandamus only lies to compel one to do what ought to be done in the discharge of a public duty, and not to undo what is improperly done, even though it may have been done under the color of performance of public duty.” 57 Misc. Rep. 75, 107 N. Y. Supp. 1018.
Nor will mandamus issue against an officer, after the expiration of his term of office, unless the power and the duty to act still continue. 19 Am. & Eng. Ency. L. 763; 18R. C. L. pp. 120, 121.
Bird.zEll, C. J'., concurs.