delivered the following dissenting opinion :
The high prerogative writ of mandamus has been justly compared to a bill in equity for specific performance, which must present the most solid and substantial merits to induce a Court of Chancery to grant such relief.
When applicable to a case in which the right to occupy a public office is involved, it will not issue upon light, technical and equivocal representations, but having its foundation in the principles of justice and public policy, to preserve peace, order and good government; there must exist the strongest grounds of equity, and the exigencies of the occasion must admit of no reasonable doubt, to demand from the conscience of the Court, the exercise of this extraordinary remedy. I have been able to find not a solitary case where it has been employed by the Court to instal a party in a public or private office, conceded to have but an apparent and colorable title thereto ; where a competent tribunal, having full power and authority finally to conclude the matter, was in the actual exercise of its jurisdiction in the investigation and trial thereof.
Under such circumstances, that another Court, not having ample authority to hear and determine upon the merits of the case, and render full and adequate justice, should intervene, and by its process put the applicant in the office, who may, upon the ultimate determination, be deprived thereof, and constituted an intruder, strikes me, as a proceeding anomalous and unwarranted by the nature of the writ.
I do not understand, that the Courts are to be made the mere instruments to settle and determine upon colorable or prima facie titles, but upon bona fide, and complete claims.
The writ, in my judgment, should never issue, in any case upon such grounds as presented by the pleadings and evidence in the case before us. It is not demandable *406ex débito justitice, but is always granted, according to the sound discretion of the Court, governed by the rules established for the maintenance of substantial justice. It was said by C. J. Bowie, in the case of State vs. Graves, 19 Md., 374, that this discretion will not be exercised, unless some just and useful purpose may be answered by the writ. The same doctrine is held in all the cases. Wallace vs. Zimmerman, 23 Md., 53; Hardcastle vs. Railroad, 32 Md., 35.
According to the provisions of the 12th sec. of Art. 4, of the Constitution, the House of Delegates is made the judge of the election and qualification of the applicant here to the office of Clerk of the Court for Prince George’s County; and the contest as to the rightful occupant of that office, is now pending before that body, whose exclusive province it is to determine the question. It is a well settled principle of law, that where a matter is in controversy before a competent jurisdiction, the Court should not interfere by mandamus. Tappan on Mand., 74.
Conceding that the petitioner has been returned as elected to the office in question, and has been commissioned by the Governor, and has given bond and qualified, according to law, and that this gives him at least a prima facie title, to occupy the office of Clerk; but that such is the fact, that the legality of the election and his right to the office, is being contested before the House of Delegates, what sufficient reasons of public policy, or the civil or personal rights of the applicant, have been shown to justify the exercise of this high prerogative writ. In what respect are the interests of the public, or the individual jeopardized by its refusal ? It is not the duty of the Court to interpose and determine questions in advance of the action of the forum, authorized and fully empowered finally to adjudicate them.
The action of the Court would necessarily be limited, and ought to await the exercise of jurisdiction by the *407appropriate tribunal. Such exercise of authority by the Courts, does not seem to me to be demanded, upon the principles of public policy, or the interests of the petitioner, whose case may be speedily disposed of by the House of Delegates ; and his ultimate rights in this matter determined. Comity and ordinary respect to the proper tribunal, to adjudicate the question, forbid interference except in a case demanding the most summary and active measures to prevent a gross wrong.
But the facts disclosed by the proceedings in this case, according to my judgment, deny to the petitioner the benefit of the legal presumptions in his favor, afforded by the commission of the Governor.
We are obliged to consider the case according to the facts, disclosed by the pleadings, under the effect of the general demurrer to the answer of the respondent.
The question must be disposed of as it has thus been presented.
The demurrer by the established rule of pleading, admits the facts alleged in.the answer, and refers the question of their legal sufficiency to the decision of the Court. Weems vs. Willard, 2 H. & G., 143; Neal vs. Clautice, 7 H. & J., 372; 1 Chitty’s Plead., 662.
I take it, the matter stands under the demurrer, very much in the same position it would occupy if a replication had been entered to the answer, and there had been proof of the facts as stated in the answer.
The answer avers, that the respondent rightfully holds the office by virtue of his election as Clerk in 1867, until his successor has been elected and qualified. It denies that the petitioner was legally elected, and this fact is admitted by the demurrer — •
That there were fraudulent votes cast for the petitioner, and that the respondent received a plurality of the votes of the qualified voters.
*408Assuming that the averments are not mere formal statements, but representations of the actual facts, and according to my judgment from the pleadings, they must be so understood; all presumptive right to the office on the part of the petitioner, is overcome by the admitted facts ; and to give him the benefit of the writ of mandamus to place him in the office, in this state of the case, seems to me at war with the established principles governing the exercise of that writ.
It appears to me such a conclusion would instal the petitioner in the office by virtue of the Governor’s commission, although he admitted he had not really-been elected; and was not legally entitled thereto; and that the commission was in truth, but an invalid instrument. If the House of Delegates should determine that the petitioner was legally elected and qualified to hold the office, and the respondent should refuse to surrender it, he would then be entitled to the writ; unless made to appear that the House of Delegates has ample authority to carry into effect, and enforce its own judgment in the matter.
With much respect for the opinions of my brethren, who constitute a majority of the Court, I am constrained to differ with them in their conclusion.
I think under the circumstances, the peremptory writ should not issue, and therefore that the judgment of the Circuit Court ought to be reversed and the petition dismissed without prejudice.