People ex rel. Anderson v. Durick

Norton, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring. By the Act of March 31st, 1858, the office of County Recorder was separated from that of County Clerk, and the Recorder was made ex officio Clerk of the Probate Court. By the seventy-fourth section of the Revenue Act of 1860, the County Clerk is made ex officio Recorder, and he thus became Clerk of the Probate Court, but he became so by virtue of his office of Recorder. The Recorder is the Clerk of the Probate Court, and it is immaterial whether the Recorder acquires his office by election, independently of any other office, or whether it is conferred upon him by law, in consequence of his holding some other office. The offices of County Clerk and of County Recorder are distinct offices, though they may be held by the same person, and it makes no difference in the character of the office whether the law declares in terms that the Clerk shall also be Recorder, or declares that the Clerk shall be ex officio Recorder. By the forty-ninth section of the Revenue Act of 1861, County Recorders are to be elected separately; but in neither of these Revenue Acts are there any provisions inconsistent with his right to exercise the office of Clerk of the Probate Court, and hence the repeal by these acts of all laws or parts of laws in conflict with them does not have the effect of repealing those provisions of the law of 1858 by which the Recorder was made ex officio Clerk of the Probate Court. The Act of 1858 has not been repealed by name, and although such parts are repealed as are in conflict with the Revenue Acts of 1860 and 1861, it cannot be held that it is [96] altogether repealed. So much óf it as makes the County Recorder ex officio Clerk of the Probate Court is still in force, and as the defendant is the duly elected County Recorder, he is entitled to discharge the duties of such Clerk, and to retain the custody of the books and papers. It is not necessary to decide whether the mandamus would be the proper remedy to obtain these books if the relator was entitled to them. The judgment is reversed, and the Court below directed to dismiss the writ of mandamus.