State ex rel. Cooper County v. Trent

Sherwood, Judge, delivered the opinion of the court. The only question worthy of consideration in this case, is whether a writ of mandamus lies against one, who, having been employed by the County Court to make a survey of all .the public roads of the county, and to plat them in a suitable book, does so, and after receiving .the contract price for his services, regains possession*of the book and refuses to deliver the same. The Circuit Court awarded a peremptory writ for the de-. livery of the book, and this ruling, together with all the intermediate steps, which led the way to such result, are assigned for error. As indicated at the outset, however, the propriety of the conclusion reached, will be the only point on which our attention will be centred. An examination of the authorities shows that, although the granting of the writ referred to [572] is of common occurrence, where there is no other specific legal remedy, in case an. ex-officer, whether of a public or a private corporation, company, church, or society, or the executor- or widow of such officer, refuses upon demand made, to deliver to his successor in office, the insignia, books, papers, etc.-, pertaining to such office, (Town Clerk of Nottingham’s Case, Sid., 31; Anon., 1 Barn., 402; Rex vs. Wildman, 2 Stra., 879; The King vs. Ingram, 1 W. Be., 50; Rex vs. Chapham, 1 Wils.; Walter vs. Haynes, 24 Vt., 658; The People vs. Killduff, 15 Ill., 492; The People vs. Head, 25 Id., 325; Bun vs. Norton, 25 Conn., 103) yet the most thorough research has signally failed to discover a single instance, where a mere private person, as in the case at bar, has ever been held answerable in such a method of procedure for books of a public na■ture, which were detained by him. On the other hand, authority has been found, in full accord with our impression on the argument of the cause, that as regards a person holding no official or quasi official station, 'mandamus would not lie. (3 Steph. N. P. *2308 and cases cited.) The case of the proprietors of St. Luke’s Church vs. Slack, (7 Cush., 226,) is strongly relied on by counsel for relator, as sustaining the ruling of the court below. But that case simply decides this: that on refusal of the treasurer of a religious society, upon the expiration of his term of office, to deliver the records, etc., of the society to his successor, mandamus would issue on petition of the society, to compel him to do so'. It is true that after deciding the case mentioned, and very correctly, a loose concluding remark is made, to the effect, that the writ lies to “any person” who has the books of a corpora'tion in his possession, and refuses to deliver them up. But -this observation was entirely dehors the record ; a mere dictum, which finds np support in the long list of cases over which our research has ranged. This leads to a reversal of the judgment; Judge Vories absent; the other judges concur.