I dissent. The writ of mandamus lies only to compel the performance of a clear legal duty. (Sec. 7214, Rev. Codes; State ex rel. Breen v. Toole, 32 Mont. 4, 79 Pac. 403; State ex rel. Dorlan, v. Board of County Commrs., 49 Mont. 517, 143 Pac. 984; State ex rel. Culbertson Ferry Co. v. District Court, 49 Mont. 595, 144 Pac. 159.) The affidavit of the relator discloses that his title to the office is put in issue by a contest. Until the issue is determined finally, the relator does not, in my opinion, exhibit a clear right to the compensation which attaches to the office. It is true, the house in which he now occupies a seat is the exclusive judge of the election of its own members; but it has not yet undertaken to determine whether the relator is in fact a member either for the term or for any portion of it. The resolution goes no further than to declare what the statute itself declares, viz.: that the certificate held by him is prima facie evidence of his right to membership of the house. (Rev. Codes, sec. 56.) It does not have the effect of giving him a right to demand that the auditor issue to him a warrant for his compensation, nor enjoin upon the auditor the duty to do so, so long as his title to the office is contested.
The supposed case stated by Mr. Justice Harwood, in State ex rel. Thompson v. Kenney, 9 Mont. 223, 23 Pac. 733, cited by Mr. Justice Holloway, is exactly the case presented by relator’s *476affidavit, and though the conclusion announced by Mr. Justice Harwood was a dictum not called for by the facts of the case before the court, I think it embodies the rule which should be observed in this case. If relator should finally be seated, he would be entitled to compensation from the beginning of the term. If the contestant should finally be seated, he would be entitled to compensation for the same time. It, therefore, being uncertain whether the relator will ever be entitled to any compensation, it is not clearly the duty of the auditor to issue him a warrant for compensation.