State ex rel. Hetzel v. Board of Commissioners

By the Court, Belknap, J.: Application for a peremptory writ of mandamus requiring the county commissioners of Eureka County to order an election as provided by the terms of- the act creating the County of Eureka. Section three of said act directs that if on or before the first Monday in July, A. d. 1873, five hundred or more of the qualified electors of the County of Eureka petition the board of county commissioners to order an election for county officers, it shall be the duty of said board to call an election for that purpose to be held on the first Monday in August, A. d. 1873. Before ordering an election two facts are to be ascertained: 1st, whether five hundred persons have petitioned; and 2d, whether they are qualified electors. It is evident that these facts must be determined by the commissioners acting judicially, and we cannot direct the particular decision they shall reach. They must determine the questions presented to them by the dictates of their own judgment. The writ of mandamus lies to compel an inferior tribunal or board to exercise its judgment and render a decision where a failure of justice would otherwise result from delay or refusal to act. In this case action was taken by the commissioners. Their conclusion may be reviewed and if erroneous corrected, but not by this process. The application for a writ of mandamus is denied.