Judge Nelson, whose dissenting opinion, in 5 Hill, is relied upon by the appellants, has repeatedly maintained this doctrine. See 10 Wend. 395. He says, “ The proposition is, I believe, universally true, that the writ of mandamus will not lie in any case where another legal remedy exists, and it is used only to prevent a failure of justice.” He further observes: “The principle which seems to lie at the foundation of applications for this writ and the use of it is, that whenever a legal right exists, the party is entitled to a legal remedy, and when all others fail, the aid of this may be invoked.” And he cites'as authority upon, this point, 3 Burr. 1267; 1 T. R. 404; 3 lb. 651; Gowper, 378; Per Buller, J„, 4 Bacon Abr. tit. Mandamus, 496; 12 Johns. 415; 19 lb. 259; 1 Cowp. 419. Again, in 25 Wend. 680, Nelson, (then Chief Justice), says, “ After full consideration, I feel persuaded that the relator has a perfect legal remedy by action, which upon settled principles forbids a resort to the writ of mandamus.”
Indeed, all the cases cited by the appellants, and which it is claimed overrule this position, will be found to depend upon the ground that no other remedy is adequate, specific, or proper; and the conclusion at which we have arrived is, that the established rule of the common law upon this subject stands unshaken and unimpaired by any of the modern cases. But if any doubt can remain upon this question, or if the mere weight of authority, [174]either as regards the number of authorities, or the respectability of their source, is against the proposition, the statutes of this State unquestionably settle the point beyond all further controversy.
The statute, which we regard as an embodiment and re-affirmance of this view of the principle of the common law, provides, sect. 468 of the Practice Act, that “ This writ shall be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” And, e converso, it shall issue in no other. The ground assumed by the appellants, is, that although another remedy, plain, adequate, and speedy, in the ordinary course of law, does exist, still resort may be had to this writ. "We'cannot admit that such was the intention of the legislature in framing this enactment, but conceive that it was intended to give statutory authority and validity to a process which is regarded as a remedy of an extraordinary and supplemental character, and to define its functions and limit its power in accordance with the recognized and established principles of the common law; and, viewed in this light, it is in perfect harmony and consonance with those principles.
But there is another reason why mandamus should not be resorted to in a case like the present; and as this appeal has been urged with much earnestness, we propose to review this question in all its bearings, believing that public policy and public security can best be subserved by a final disposition of this matter, and in order, not only that the questions involved in this instance shall be fully considered, but that fruitless litigation may hereafter be avoided in similar cases.
This is professedly a proceeding under the statute of this State to compel the admission of the relator to the use and enjoyment of an office, to which he is entitled, and from which he is unlawfully precluded, but in reality, it is a proceeding to try the title to the office; both parties claiming it, and the defendant, who has been admitted and sworn, being in possession, and contending that he is the lawful incumbent. The relator demands the writ of mandamus, to compel the defendant to hand over to him the books and papers, and to allow him to enter upon the discharge of the duties of the office, upon the ground that he is [175]entitled to it, and that he is unlawfully precluded from the enjoyment of it by the defendant.
In the first place, this cannot be said without begging the question of title, and while the defendant is actually in possession of the office, duly sworn and admitted, and exercising the duties as officer de facto, he is prima facie entitled to it: such is the presumption of law; and in the second place, while the defendant is thus in the office, under the color of lawful right, and claiming to be the lawful incumbent, his title to the office cannot be tried upon mandamus; and thirdly, the statute has provided a plain, speedy, and adequate remedy at law by the Practice Act, which provides for an action “ against any person who usurps, intrudes into, or unlawfully holds or exercises, any public office, civil or military, or any franchise within the State.”
We consider that it is a well-settled rule of the common law, that the title to an office cannot be tried by mandamus. A mandamus can give no right, not even the right of possession, although it may enforce one. It may be resorted to for the purpose of putting a claimant in a position to assert his right, when without that, he could not do so. It may be used to compel an officer of an election to give a claimant a certificate of his election, but this, if he obtains it, will not necessarily oust the incumbent, or give the claimant possession of the office. So, too, it will lie upon the application of a person showing a prima facie right to an office, who seeks to have the proper oath of office administered to him, to the end that it may place him in a condition to assert his legal rights, but he would still have to resort to quo warranto to oust the incumbent and get possession of the office.
The authorities to sustain the position, that mandamus will not lie, when the office is full, are very numerous, but we propose to cite only a few of them. The whole subject has been considered in the notes appended to the report of Fish v. Matheneux, in 2 Johns. Cases, 217, in which, among others, is cited the following:—“ Though a mandamus to admit to an office, gives no title, yet it will not be granted, when there is an officer de facto, though that officer be in under a temporary mandamus, obtained by collusion and claim under the same election with the applicant; for the remedy is, to try the title to the office de facto [176]or on information in the nature of a quo warranto.” Angel and Ames on Corp. 3d ed. 639.
“ A mandamus to a Mayor to admit one to the office of Recorder, was refused, because there was a Recorder de facto, and it was therefore a decisive answer to the application, that there was another remedy, by an information in the nature of a quo warranto, by which, the title of the officer in possession could be tried.” Rex v. Mayor of Colchester, 2 Term, R. 289. So of one to a Bishop, to compel him to license a curate of an augmented curacy, where there was a cross-nomination; for the party had a specific legal remedy by quare impedit. Rex v. Bishop of Chester, 1 T. R., 396. “ If quare impedit does lie, mandamus does not,” per Lord Mansfield, in Powel v. Milbank, Id. 397. But though an office be full, still if quo warranto does not lie, a mandamus will be granted, upon the principle that the party shall not be without a remedy. Rex v. Mayor of Colchester, infra. The American authorities also support this position. The case from 3 Johns. Ca. 379, is directly in point. The court there say, that “Where the office is already filled by a person who has been admitted and sworn, and is in by color of right, a mandamus is never issued to admit another person. The proper remedy, in the first instance, is by an information in the nature of a quo warranto, by which the rights of the parties may be tried.” His authority is amply sustained by others. It is commented upon by Justice Morton, in 20 Pick., but he does not rule against it, the case being decided upon another point; he, however, concurs with Mr. Dane, and refers to the Virginia case ; but we have already sufficiently considered that authority. In The People v. Stephens, 5 Hill, Bronson, Justice, says, after stating the facts of the case, “Enough has been stated to show that the relator proposes upon this writ of mandamus for the delivery of papers, to try the title to the office of Clerk. The relator has several difficulties to encounter, which I think insuperable; and in the first place, the defendant is actually in the office of Clerk under color of lawful right to hold it. A writ of mandamus is not the proper mode of trying it. The relator should have proceeded by an information in the nature of a quo warranto. In The King v. The Corporation of Bedford, a man[177]damus was granted; but it was for the reason that a quo warranto would not lie in that particular case, and there was no other adequate remedy. The relator should first establish his right to the office, by a direct proceeding for that purpose, and then his right to the books and papers would follow as a matter of course.”
There are other cases to show, that though an office be full, still if quo warranto does not lie, a mandamus will be granted; but this is upon the principle that the party shall not be without a remedy.
In the present case, it cannot be said that the relator is without a remedy. The statute is ample, and furnishes not only a specific, but adequate and speedy remedy. It was the intention of the propounders of the law, that it should be so, and we have not yet discovered that the remedy is deficient in any respect. Until it shall appear that the relator is without a plain, speedy, and adequate remedy, in the ordinary course of law, we must conclude that the mandamus was not proper in the premises, or appropriate to the relief sought. We cannot accede to the proposition, that the distinction between the two writs in force in England, and which are said to have originated under the statutes of Anne and George L, have been abolished by our statute; the very reverse of this is the fact, for not only is the distinction recognized, but if it had never existed at common law, it might truly be said to have been created by the language of our statute ; and, conceding that the decision in the Virginia case, the dissenting opinion of Chief Justice Nelson, in 5 Hill, and the ruling of the Supreme Court of Massachusetts, in 20 Pick., shall be considered as sound law, yet they do not conflict with our interpretation of the statute of this State, which, as we have al- , feady said, provides an ample, speedy, and adequate remedy; especially so, since the construction put upon it by this court, in The People, ex relatione, Casserly v. Pitch.
It is finally urged, that, as the defence is technical, and does not address itself to the merits of the case, or the conscience and equity of the court, the statute regulating the issuance of a mandamus, ought to receive a liberal interpretation. In reply to this we have but to say, that the appeal is not brought upon the ground that equitable relief had been sought and denied, but [178]from a decision which it is asserted was erroneous in law, and we sit here to review the decision on questions of law alone, and to decide what the law is, to give a correct interpretation of the statute under which the relator has, by his own choice and selection, proceeded. For the purpose of affording relief to him, we are asked by this appeal, in effect, if not in terms, to proceed upon the maxim, Boni judices est ampliare jurisdictionem, as the learned judges in the Virginia case seem to have done, relying upon the peculiar character and circumstances of the case before them for their justification; but, with all due deference be it said, we cannot see how we can follow their example and conform to this maxim, in the present case, without a usurpation that would necessarily destroy alike the reason and justice of the maxim; for, how can we amplify the remedy by mandamus which is limited by statute, without assuming jurisdiction ? The hardship of a particular case, or the difficulties which surround it, cannot be urged in justification of an innovation upon the settled rules of law, or the principle of correct interpretation, established by the experience and confirmed by the approbation of ages. We have no right, even if we had the inclination, to sweep away the established rules of law, or to enlarge the remedy provided and limited by the language of the statute, for the purpose of relieving the relator, by what is termed a “ liberal interpretation to do so, would be to overstep the bounds of certainty, and wander forth in every case in pursuit of some new light to guide us in the path of justice.
After full and careful examination of this ease, we are satisfied that the decision of the court below was correct, and therefore order that it be affirmed.