
    Daniel Rose, Petitioner for mandamus, versus The County Commissioners of the County of Knox.
    The election or appointment of register of deeds depends wholly upon statute law, which provides that such officer shall be elected in the year 1857 and in every five years then following. R. S., c. 7, § 2.
    When a vacancy occurs, the chairman of the County Commissioners is to issue his warrants to the municipal officers of the several towns, &c., of the registry district, to fill the vacancy.
    Therefore, if the Commissioners shall neglect this duty, mandamus will lie to compel its performance.
    But, without such warrants, the municipal officers of the towns cannot legally call meetings to fill such vacancy.
    And a writ of mandamus will not be issued to the County Commissioners, to compare the returns of votes, made to them, to ascertain who has been chosen, at an election so held.
    The petition for mandamus, in such a case, must allege affirmatively that a vacancy existed. •
    The Act of March 9, I860, incorporating the county of Knox, (which was to take effect on the first day of April,) authorized the Governor to appoint a register of deeds and certain other officers for the county, who were to continue in office until their places were filled by an election, according to the laws ; manifestly intending an election in the manner prescribed by the gen- . eral law, and not that there should be special intermediate elections.
    By the general law, the time for the election of registers of deeds would be in the year 1862. The register appointed by the Governor would hold until that time, and, while he thus continued to hold, there would be no vacancy.
    
      This was a petition for a rule, to issue to the County Commissioners to appear and show cause why a writ of mandamus should not issue, commanding them to declare the petitioner Register of Deeds for the county of Knox.
    The petitioner sets forth, in his petition, that, on the day of the annual election for officers in this ¡Sítate, in the year 1860, he was elected to that office by a majority of the votes of the legal voters of that county; that returns were duly made by the municipal officers of the several towns, &c.; but that the County Commissioners, disregarding their duty provided by statute in’ such case, neglected and refused to open and compare the votes thus returned.
    It appears from the case, as stated by the parties, that George W. White was appointed and commissioned as register of deeds for that county,-(under the provisions of the Acts establishing the county oí Knox, passed in March, I860,) to perform the duties of said office until another should be duly elected and qualified to fill his place, and that he entered upon said duties, April 1, 1860.
    That the chairman of the County Commissioners did not issue his warrants to the municipal officers of the towns, &c., in said county, directing them to convene the qualified voters thereof, to choose some suitable person to fill the vacancy in said office of register of deeds by an election as provided by c. 7 of R. S., although requested so to do. But the municipal officers of all the cities, towns and plantations, in said county, acting upon their own motion, did duly convene the qualified voters thereof for that purpose, by their warrants duly executed and served, upon the day of the annual election for State and county officers, and that the legal voters of said county in all the cities, towns and plantations aforesaid, cast their votes for candidates for said office, and that said Rose had a majority thereof, as is stated in his petition.
    
      Gould, for the petitioner.
    
      Meserve, County Attorney, for the respondents.
   The opinion of the Court was drawn up by

Kick, J.

The petitioner prays for a rule to issue to the respondents, to appear and show cause why a writ of mandamus should not issue, commanding them to declare the petitioner register of deeds for the county of Knox.

The case is presented on an agreed statement of the parties, in which the facts set forth in the petition are admitted to be true.

The petitioner claims to have been elected register of deeds for the county of Knox, at the annual election for State and county officers in Sept., 1860.

By the provisions of § 2, c. 7, K. S., registers of deeds, in each county and in each registry district, wére to be elected on the second Monday of September, 1857, and in every five years thence following. The petitioner does not claim to have been elected under the provisions of this section, as the voting did not occur in any year therein indicated.

Section 10 of the same chapter provides that, in case of vacancy in the office of register of deeds, the clerk of the Judicial Courts shall perform all the duties and services of register of deeds during such vacancy.

For the purpose of supplying such vacancy, by a new election of a register, the chairman of the County Commissioners shall issue his warrants to the municipal officers in. the towns in said county or registry district, directing them to convene the qualified voters thereof, to choose some suitable person to fill the vacancy. R. S., c. 7, § 13.

By section 14, the chairman of the Commissioners is directed to make his warrants returnable at a day certain, and notify the other County Commissioners to attend at the return day, and they shall then examine the returns made, as directed; and the person elected in manner as aforesaid, after being duly sworn and having given bond as aforesaid, shall be the register until the time when the register, elected at the next election of the registers throughout the State, enters upon the discharge of his duties.

The questions presented for consideration are, whether a vacancy existed in the office of register of deeds, and, if so, whether , the petitioner was legally chosen to fill that place at the time he claims to have- been elected. He does not, in direct affirmative language, allege in his petition that such a vacancy existed. To give this Court jurisdiction, that fact should be thus alleged. This, however, is a technical defect, not going to the, merits of the controversy. We therefore pass it and proceed to consider other propositions in the case, and, for that purpose, assume for the moment that a vacancy in fact existed.

The constitution makes- no provision for the election of register of deeds. The election or appointment of that officer, depends wholly upon statute'provision. The statute, as we have seen, applicable to ordinary cases, provides for the election of that officer once in five years, the terms of office commencing in 1857. There are no other provisions for filling that office, by election, except those contained in sections 13 and 14 of chapter 7, in cases of vacancy. There must necessarily be some tribunal to determine when a vacancy exists, as well as to appoint the time for filling the same, and determining the result of the election. These duties are devolved upon the County Commissioners or their chairman, by positive statute provision, or necessary implication.

To refer these questions to the municipal officers of the several cities, towns and plantations, would lead to uncertainty and confusion, and is without any authority of law.

If it should be said that this construction will deprive citizens of a right to vote for register of deeds, when vacancies actually exist, unless the chairman of the County Commissioners may choose to issue his warrants ftir an election, the answer is, that the remedy consists in an application to this Court to compel that officer to perform his duty, and issue the warrants for any election, and not to compel him to perform an act not required by law.

But an examination of the facts in this case, in connection with the statutes bearing upon the subject matter, has satisfied us that there was in fact no vacancy existing in said office at the time the petitioner claims to have been elected. The It. S., c. 7, evidently contemplates a vacancy that may occur in the ordinary course of events, after counties have been organized and elections .had been held. Hence the provision in section 13, for supplying such vacancies by a new election, language not appropriate in cases where there had been no previous election to the same office.

The Act of March 9, 1860, incorporating the county of Knox, took effect on the first day of April next following. By the 10th section of that Act, the Governor was authorized to appoint a register of deeds, with certain other officers, for the county, who were to continue in office until their places were filled by an election according to the constitution and the laws, unless sooner removed for cause.

It is, by this provision, manifestly intended that the officers thus appointed shall hold their offices until their places are filled by an election held at the time, and in the manner prescribed by the constitution and the general law, and not that there shall be special intermediate elections. This construction is strengthened by reference to the provisions of the additional Act of March 19, 1860.

Under the provisions of the Act of March 9, 1860, the case finds that George W. White was duly appointed and commissioned register of deeds for said county, to perform the duties thereof until January 1, 1861, or until another should be duly elected and qualified to fill his place; and that said White entered upon the duties of his office, April 1, 1860, and, so far as the case shows, has continued to discharge the duties of the office until the present day. Under that appointment he will be authorized to hold the office until after the election in 1862, unless removed therefrom for cause. The petition must be dismissed.

Tenney, C. J., May, Goodenow and Kent, JJ., concurred.  