David Josiah Brewer

“ Who would doubt, if these petitioners were the unquestioned commissioners of the county, that mandamus would lie to compel the clerk to recognize them, and record on the county books their proceedings as such? Does the fact that certain parties are contesting their rights as commissioners oust the court of jurisdiction, or forbid it to compel other county officers to recognize them? Must the office of county commissioners remain practically vacant, and the affairs of the county unadministered, pending a trial of a right of office between contestants? Surely not; public interests forbid. ”

“ It is objected that the peremptory writ was void because ordered in vacation by the judge, and not after trial before a jury, in the court, in term time. Section 2005 of the Compiled Laws of the territory provides: 'For the purpose of hearing application for and issuing writs of mandamus the district court shall be regarded as open at all times wherever the judge of such court may be within the territory.' This section gives full authority for these proceedings. ”

“ They require that the office should be filled, and that, when filled by parties under color of right, all other officers should recognize them as commissioners until their right to hold the office has been judicially determined adversely by proper quo warranto proceedings. ”