
    Goodwyn, Judge of Probate v. Sherer, et al.
    
    
      Mandamus to Compel Judge of Probate to Issue Mileage and Per Diem to Commissioners.
    
    (Decided Feb. 8, 1906,
    40 So. Rep. 279.)
    1. Mandamus; Functions of Writ; Trying Title to Office. — Mandamus cannot be maintained to compel a judge of probate to issue mileage and per diem to county commissioners, where it appears frem the answer that other persons wer.e claiming to exercise the rights and powers of the office claimed by relators, there being appropriate legal remedies to try title to office.
    2. Same; Pleading; A.nsioer.- — -In a mandamus proceedings to compel a judge of probate to issue certificates for mileage and per diem to- commissioners, an answer which sets up that other persons are claiming and exercising the functions and powers pertaining to that office, is not demurrable as an attempt to try title to the office, it being defensive matter proper to be set up by answer .
    3. Same; Joint Relators; Separate Interests. — Mandamus cannot be maintained jointly by two' relators whose interests are separate, as each party must have a clear legal right with respect of the entire cause of action presented.
    Appeal from Fayette Circuit Court.
    Heard before Hon. S. H. Sprott.
    This is a petition for mandamus filed by Sherer and another claiming to exercise the powers find to be entitled' to the office of commissioners of Fayette county against the judge of probate of said county to compel him to issue his warrant on the treasurer for their mileage and per diem as such county commissioners. The answer to the petition alleges that two other persons are claiming the office and exercising its functions. The facts sufficiently appear in the opinion.
    O. W. Sanders and J. J. Maveield, for appellant.—
    The purpose and intent of this proceeding is really to quiet the title to the office of county commissioner of Fayette county. Mandamus is not the proper remedy.— Ex parte Harris, 52 Ala. 87; Harmon v. Hamül, 97 Ala. 107. If the parties are permitted to have mandamus it will amount to a collateral decision of questions of importance between persons not parties to the record. — • Ex parte Dubose, 64 Ala. 278.
    J. M. Si-xerer and R. F. Peters, for appellee.
    Mandamus is the proper remedy. — State ex rei Tyson v. Wharton 142 Ala. 90; General election law 1903. Where a rightful officer in the actual enjoyment of the office is ousted, mandamus is the proper remedy to compel his recognition.- — Ex parte Lush, 82 Ala. 519; State v. Falconer, 44 Ala-. 696; State ex r&l Ely, 43 Ala. 568; Huclmond v. Slaughter, 70 Ala. 546; Ex parte Wiley, 54 Ala. 226; State v. Dunn, Minor 46. Mandamus is the proper remedy because there is no other remedy to enforce the performance of the particular duty prayed for in the information. — Briehman v. Wilson, 123 Ala. 280; Sessions <£ Leary v. Boyhin, 78 Ala. 328; 11 Gyc. 381. The demurrer to defendant’s answer ivas properly sustained.— Longshore’s erne, 34 So. 684.
   DENSON, J.

This is a proceeding by mandamus to comped the respondent, who is judge of probate of Fayette county, to issue certificates in favor of relators, J. D. Sheier and B. Henry, for mileage a.nd twO' days’ attendance as county commissioners of said county at the regular February term, 1905, of the commissioners’ court of said county. It is clearly made to appear by the answer of the respondent to the alernative writ that two other persons, W. II. Brown and W, M, Wright, were elected at the general election held in said county in 1904 to the identical offices claimed by the relators, and that said. Brown and Wright were duly commissioned by the Governor as county commissioners of said county for the first and third districts, respectively; that said Brown and Wright- appeared at the regular term of the commissioners’ court field on the (second Monday in February, 1905, and presented to respondent their commissions as such commissioners for the first and third districts of said county, demanding that they be allowed to transact the business and perform the dutes of commissioners at said term ■ of the court; and that they did perform the duties during said term. It- is also shown by the answer that the relators did not perform the services as commissioners at said February term.

Thus we have a case of rival parties claiming title to office, and the answer makes it appear that the proceeding by the relators is an attempt on their part to test the right to office between themselves' and the rival claimants by a mandamus proceeding It is manifest that the respondent, before he could have properly issued the cei*tificate to relators, would of necessity have: been compelled to pass upon the validity or not of their title to the office claimed by them, and this, too, in the absence of Brown and Wright as parties to the proceeding. It does' not appear from the pleadings that the election and commissions of Brown and Wright are apparently colorable and void. But it appears that Brown and Wright held commissions to the office and were also de facto- commissioners. In such state of the case the courts will uot interfere by mandamus, but will put the relators in the first instance to an information in the nature of a quo warranto.- — State ex rel. Mead v. Dunn, Minor, 46, 12 Am. Dec. 25 ; Ex parte Harris, 52 Ala. 87, 23 Am. Rep. 559 ; Har-mon v. Hamil, 97 Ala. 107, 11 South. 892 ; Ex parte Du Bose, 54 Ala. 278 ; Taylor v. Kolb, 100 Ala. 603, 13 South. 779 ; Anderson v. Colson, 1 Neb. 172 ; State ex rel. Vail v. Draper, 48 Mo. 213: Rex v. Banks, 3 Burr. R. 1454. Setting up the matter in answer referred to as respondent’s reason for not issuing the certificates did ml pur the respondent in (he attitude of seeking to try the title ro the office by a mandamus proceeding, as was assumed by the demurrer to the answer. Its legitimate effect was to show that the relators were in that attitude. It was legitimate defensive matter, the demurrer admitted it was true; and the court- erred in sustaining the demurrer.

There is another point in the case which was not raised in the court below, but which on account of the nature of the proceeding, we will mention here. The petition presents district rights of different persons which cannot- be joined in the same proceeding. Sherer is not interested in Henry’s claim for mileage and per diem — in his cause of action ; nor is Henry interested in Sherer’s.' Ffir this reason the court might well have dismissed the petition, and probably should have done so-, notwithstanding the point was not made by the parties. Each party must have a clear legal right, with respect of the entire cause of action presented, or mandamus cannot be. propo-ly awarded. — High on Ex. Rem. (2d Ed.) § 540 ; Heckart v. Roberts, 9 Md. 41 ; Hoxie v. County Com'rs. 25 Me. 333 ; The King v. City of Chester, 5 Modern Rep. 11 ; Rex v. Mayor, 11 Mod. 382.

Without-deciding the question as to repeal or not of the local statute involved in this controversy by the en-ac-l merit of the general election law, we cite the cases of Maxwell v. State, 89 Ala. 150, 7 South. 824 ; State ex rel. Tyson v. Houghton, (142) Ala. 90, 38 South. 761.

The- judgment of five circuit court is reversed, and the cau^e remanded.

Reversed and remanded.

Haralson, Dowdell, and Anderson, JJ. concur.  