
    Commonwealth versus William Athearn
    The Court will not award an information, in nature of a quo warranta, against a town officer, who is elected for one year. ■
    Upon such an information being denied, the respondent is not entitled to costs.
    At the last July adjournment in Suffolk, B. Whitman filed a motion for a rule of Court against the respondent to show cause why an information, in the nature of a quo warranta, should not be awarded against him for claiming to hold the office of town clerk of Tisbury, in Dukes county. The Court granted a rule, de bene esse, returnable at this term.
    * And now the Chief Justice suggested to Whitman, [ * 286 ] that since granting the rule to show cause, the Court had considered the subject more fully, and doubted whether, from the impracticability of giving a remedy in the case, an information ought to be awarded against an officer holding by election for a year only. Whatever may be the authority of the Court to issue process of this kind, from the present organization of the terms of the Court, it will in no case be possible to come to a decision of the question until a year has expired. In the mean time another election will pass, and the respondent will be either out of office, or lawfully in by virtue of a new choice.
    
      Whitman confessed that the rule could have no operation, as to its principal object, viz. the removal of the respondent from office. But upon this process a fine may be imposed in addition to the removal, and he thought it might also be imposed, if it should appear that the respondent had unlawfully assumed to exercise the powers and authorities of an office, to which he had no legal title. The fine would show the opinion of the Court upon the main question, which would have its use in the community. This Court has a superintending jurisdiction over all inferior tribunals, and claims to offices
    
      If this process furnishes the only method, in which the citizens can be informed of the law of the land in a case like the present, it is very desirable that they should avail themselves of it to declare the law. The respondent is now in possession of the office. Sufficient evidence has been exhibited to the Court to make his claim doubtful, to say the least of it. We have then a right, under the existing circumstances, to the process of the Court, who will not look further than to the rights of parties applying at the time when they are before the Court.
   Parker, J.

I should not be for granting an information in any case, where the judgment of the Court upon the information can have no effect. The officer may be liable to a fine, in case judgment of a motion be rendered, but not otherwise, as I now recollect When the information comes to a hearing, this man’s tenure in the office he claims will have expired. We could not then pass a judgment of removal. Upon this ground I am against granting the information.

* Sewall, J.

I consider this rather as a proceeding in rem, to obtain a specific remedy, than as a mode by which the respondent is to be punished. But before judgment can be rendered, the mischief will be gone. To proceed further in the case would be futile;

Parsons, C. J.,

concurred, and added, that if the Court should remove a town officer, who is chosen for a year, he did not know that there was any provision in law, by which a vacancy thus created might be filled. The Court will be understood by this decision to have determined, not that they have no authority to grant an information whenever they shall think a case exhibited to them shall require it, but only that in the present case it would not be a discreet and proper exercise of their authority.

As the town clerk for the preceding year holds over until another clerk is chosen and qualified, perhaps the proper remedy is for the successor to take the oath of office, and to demand of the former clerk the records; and if they are refused, then to move for a mandamus, to command him to deliver over the records. The rule is discharged.

Upon this opinion being declared, the Attorney-General, of counsel for the respondent, moved that he should have judgment for his costs, as the party prevailing .

But the Court said they had no authority to give costs to the respondent in this case. 
      
      
        Stat. 1784, c. 28. § 9.
     