their own use as a cemetery makes the case fact or duty by the respondent, and where the 8. MUNICIPAL CORPORATIONS (§ 138*)-TAXES -PAYMENT OPPORTUNITY FOR PAYMENT.

Where a taxpayer goes to the office of the tax collector at 3 p. m., a time within the usual office hours of the collector, as known to the taxpayer, but does not find him, and by diligent inquiry and effort cannot find the collector to whom he was then ready to pay the taxes and to take a receipt, this is equivalent to the payment of his taxes at 3 p. m., as far as affecting his eligibility as a candidate for councilman is

concerned.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 313; Dec. Dig. §

138.*]

9. MUNICIPAL CORPORATIONS (§ 138*) Or

THOMAS, J. By the Act of 1910, с. 306, a new charter was enacted for the city of Cumberland. Section 97 of this charter provides that candidates for mayor and city council shall be nominated at a primary election "to be held on the second Tuesday preceding the general municipal election," and that "any person desiring to become a candidate for mayor or city council shall, at least ten days prior to said primary election, file, or there shall be filed for him, a state ment of such candidacy" under oath, giving his place of residence in said city, stating

FICERS - ELIGIBILITY AND QUALIFICATIONS. that he is a qualified voter therein, that he Laws 1910, c. 306, enacting a charter for is qualified to hold and is a candidate for a

the city of Cumberland, provides by section 97 for the nomination of candidates or councilmen at a primary election, and that a person desiring to become a candidate should make a statement under oath that he is qualified for office, and by section 100 a councilman must be assessed to the amount of $500 on the tax books of the city at the time of the election and for two years next prior thereto, "the taxes on which shall not be in arrears." A candidate for a

nomination for the office, and that he requests his name to be printed upon the primary ballot, "and shall at the same time file therewith the petition of at least one hundred qualified voters, requesting such candidacy," and stating that they know the candidate to be a man of good moral character

councilman whose taxes were in arrears paid and qualified, in their judgment, for the his taxes at 3 p. m. on election day. Held, duties of such office. This section further that under section 100, construed with section

97, such payment did not remove the candi- provides that "the two candidates receiving

date's disqualification for office.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 313; Dec. Dig. § 138.*]

10. MANDAMUS (§ 5*) - PENDENCY OF OTHER PROCEEDINGS - ADEQUACY OF RELIEF-PAR

TIES.

In order that a pending election contest by one of the petitioners for a writ of mandamus to compel respondent to vacate his office of city councilman may be a sufficient answer to the petition, it must appear that the petitioner can obtain full and adequate relief in such pending contest, and it is not sufficient that, in a suit pending between only one of the petitioners and the respondent involving different issues, the judgment therein may indirectly and ultimately accomplish the same result as that sought by the writ.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. § 35; Dec. Dig. § 5.*]

11. MANDAMUS (§ 15*) - DEFENSES - GROUND OF OPPOSITION-MALICE-ILL WILL OF PETITIONER.

A writ of mandamus is issued in the sound discretion of the court, and, where the writ is sought to compel the performance of a duty to the public, the vacation of an office for which the holder is disqualified, and not to enforce a private right, the writ should not be denied because one of the petitioners is actuated by personal ill will in filing the petition.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 47, 49; Dec. Dig. § 15.*]

Appeal from Circuit Court, Allegany County; Robert R. Henderson, Judge.

Petition by Joseph Hirsch and another for

a writ of mandamus to Theodore A. K. Hum

melshime. Writ ordered to issue, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and PEARCE, SCHMUCKER, BURKE, THOMAS, PATTISON, and URNER, JJ.

David A. Robb and Benjamin A. Richmond, for appellant. Walter C. Capper and Albert A. Doub, for appellees.

the highest number of votes for mayor shall be the candidates, and the only candidates, whose names shall be placed upon the ballot for mayor at the following general municipal election, eight candidates receiving the highest number of votes, or all such candidates, if less than eight, shall be the candidates, and the only candidates, whose names shall be placed upon the ballot for councilmen at such municipal election." By section 98 the board of election supervisors of Allegany county are required to order an election to be held on the 16th day of May, 1910, and it provides that the manner of holding such election shall be governed by the laws of the state of Maryland regulating general elections, and that the mayor and councilmen

elected at said election "shall hold office from the first Monday in June, 1910, until the first Monday in April, 1912, and until their successors shall have been duly elected and qualified."

On the 7th of June, 1910, the appellee, Joseph Hirsch, filed in the circuit court for Allegany county a petition for a mandamus against the appellant, in which he alleged that he was, and had been for many years, a citizen of and a voter and taxpayer in the city of Cumberland, and as such was interested in having the affairs of said city "managed in an orderly and lawful manner, and by officers duly qualified to manage the same"; that by the terms of the charter of Cumberland "each councilman of said city must be the bona fide owner of property to the value of $500.00, and be assessed for the same on the tax books of said city at the time of his election, and for two years next prior thereto, the taxes on which shall not be in arrears"; that at the election held on May 16, 1910, the appellant, Theodore A.

K. Hummelshime, "was returned as having at his office, which was then and is provided

been elected a member of said mayor and city council, to wit, as a councilman, and is new assuming to act and is acting as such councilman"; that at the time of said election the appellant was assessed on the tax books of the city with property of the value of $500; but "that at the time of said election the taxes so assessed against" the appellant "were in arrears and unpaid, and remained so in arrears and unpaid for some days thereafter; and that by reason thereof said Hummelshime was not qualified at the time of his election, and is not now qualified

for him at the waterworks building on Green street in the said city, from about the hour of 9 o'clock in the morning until 5 in the afternoon, except for about an hour from 12 o'clock on, to receive the taxes from the taxpayers of the city of Cumberland and to give receipts therefor, which duty and custom was well known to this respondent at that time and for a long period of time prior thereto; that the said Minke was not at his office of tax collector as aforesaid, nor at the waterworks of the city of Cumberland, which is near thereto, and the said

to act as councilman of the city of Cumber- Hummelshime could not find him and did

land." The petition further alleges "that the newly elected body of mayor and city council convened for organization on the morning of June 6, 1910"; that the petitioner, by his counsel, on that day "appeared before said body and the said Theodore K. Hummel

not know where he was, though the said Hummelshime inquired of city employés near said office, who informed him that they did not know where the said Minke was and that, from their knowledge, he had not been around his office during that day, except

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shime, and stated that he wished to protest once very early in the morning, but they be. against said Hummelshime's acting as coun- lieved he could be found somewhere on the cilman, for the reason that he was disquali- streets in the business portion of the town, fied at the time of his election"; that said and there was no one at said office to receive body as a whole declined to hear any state- said taxes which your respondent was ready ment in reference to the matter "at that time and anxious to pay and to give him a reand place, and said Hummelshime then and ceipt for the same, and your respondent did there stated that he had been duly elected not know and could not find out where the and that he intended to and would act as said Minke was, so that said taxes could councilman." The petition then charges that, be paid, although he diligently endeavored to by reason of the fact that the appellant was find said Minke for the purpose aforesaid; disqualified at the time of his election, the * that he, the said Hummelshime, election of the appellant was void, and that owed the city of Cumberland no taxes other it was his "duty to refrain from entering upon the discharge of the powers, privileges, and functions of said office," and that it is now his duty to vacate said office, but that the appellant, wholly disregarding his duty in the premises, refuses to vacate said office, and continues to exercise the functions thereof, and the petitioner prays that a writ of mandamus may issue commanding the appellant to vacate the office of councilman and to cease from exercising the functions thereof. On the 11th of June, 1910, the appellee J. Semmes Devecmon was made a party plaintiff in the case, and on the same day the court passed an order requiring the appellant to show cause why the writ should not issue. The appellant demurred to the petition, and, the demurrer having been overruled, he filed his answer, in which he admits the facts alleged in the petition, but denies that he was disqualified at the time of the election, and says that at the time of the election he was a bona fide owner of property to the value of $500, and was assessed for the same on the tax books of the city at the time of his election and for two years prior thereto; "that on the said 16th day of May, before the hour of 3 o'clock in the afternoon, he, the said Hummelshime, went to the office of Anthony Minke, the tax collector for said city, to pay any and all taxes which he at that time owed to the city of Cumberland for the fiscal year 1909-10; that it was the

than those for the year 1909-10 on the said 16th day of May, 1910; that on the 23d day of May, 1910, he paid to the tax collector of the city of Cumberland all taxes which had been assessed against him on the books of said city; that on the 2d day of June, 1910, he qualified and took his oath of office before the clerk of the circuit court for Allegany county, at which time he was the bona fide owner of property to the value of $500 and had been assessed for the same on the tax books of the said city at the time of his election and for two years next prior thereto, the taxes on which were not in arrears; that on the 6th day of June he entered into his office of councilman, at which time he was the bona fide owner of property to the value of $500 and was assessed for the same on the tax books of the city of Cumberland at the time of his election and for two years next prior thereto, the taxes on which were not in arrears; and that, by reason of his said election and having the qualifications of councilman and having taken his oath of office at the time aforesaid, and having entered into his duties, as aforesaid, and still retaining all the qualifications necessary for him to have, and acting as city councilman of Cumberland, which he now is, he is legally acting as such city councilman and performing the duties there. of." By the fifth paragraph of his answer the appellant alleges that the appellee, Jofor Allegany county a petition for a recount, particular act or duty by the respondent, of the ballots cast at the election held on and where the law affords no other adequate

duct of his office, and not from any "motive where such remedy is alone adequate to of public spirit or of doing a good and prop- meet the justice of the particular case." 2 er action in the interest of the voters and Poe's P. & P. (3d Ed.) § 709. See, also,

injured. Reg. v. Bishop of Chichester, 2 El. | bona fide in office, his title is not to be tried & El. 209. But as simply a preventive reme- by mandamus, but by quo warranto. Quo dy it has never been used, so far as we have been able to discover. The nature of the writ, and the end for which it was framed, direct upon what occasions it should be used. It was introduced to prevent disorder from a failure of justice and defect of police. Its use is therefore confined to those occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." In the case at bar the prayer of the petitioner is for a writ commanding the appellant to vacate the office of city councilman, etc., and is like the prayer in Triesler v. Wilson, 89 Md. 176, 42 Atl. 926. So far, then, as the nature of the relief sought is concerned, requiring, as it does, the performance of an act, the writ of mandamus is clearly the appropriate remedy, and, in considering the first question presented by the record, it only remains to be determined whether there is another adequate remedy.

It is said in 23 Am. & Eng. Ency. of Law (2d Ed.) 630, upon authority of the long list of English and American cases cited in the note, that "at common law, and in the absence of statutes changing the rule and providing other remedies, quo warranto, or the statutory substitute therefor, is the appropriate and exclusive remedy to try the title to a public office and to oust a usurper." In such cases, except where otherwise provided by statute, the sole issue tried is the respondent's title to the office, and the relator's or petitioner's title is not involved, further than is necessary to show a sufficient interest to maintain the proceedings, and cannot be determined. If the proceedings are instituted by one claiming the office, the only result accomplished is the ouster of the respondent, and the petitioner must then resort to a mandamus to effectively establish his right to the office. 23 Am. & Eng. Ency. of Law (2d. Ed.) 336. That such is the office and scope of quo warranto proceedings was distinctly recognized in Harwood v. Marshall, 9 Md. 83. In this state, however, the rule is that the title of the respondent to an office may be tried in a mandamus proceeding where the petitioner claims title to the office, and is seeking not only to oust the respondent, but to obtain possession of the office. Harwood v. Marshall, supra; Triesler v. Wilson, supra. In the latter case Judge Pearce said: "The petitioners here seek not only the removal of the respondents, but the possession of their offices; and since the decision in Harwood v. Marshall, 9 Md. 99, it is settled that mandamus is the only proceeding in which the judgment could remove the occupant and install the petitioners." See, also, 19 Am. & Eng. Ency. of Law (2d. Ed.) pp. 767-769. In a note to 9 Ann. Ch. 20, Alex. Brit. St. in force in Maryland, 695, Mr. Alexander says that it is the settled mu

warranto, therefore, in that country, is the proper proceeding to test the title of a party who has been elected, while mandamus is the proper remedy to enforce an election or admission into a vacant office. But in Maryland we have no proceeding by quo warranto, and mandamus is indifferently used for the one or the other object." And in the case of Hawkins v. State, 81 Md. 314, 32 Atl. 278, Judge Fowler disposes of the contention that Harwood v. Marshall is authority for the proposition that quo warranto is the proper remedy in this state to remove one from an office he is illegally holding, as follows: "In the case of Harwood v. Marshall, 9 Md. 99, it was held that mandamus was the appropriate remedy for a party who claims title to an office, and asks for the removal of the occupant, and it being objected that mandamus did not lie because there was another legal remedy, to wit, quo warranto, the court, assuming that it was an available remedy in such a case in Maryland, said that it was neither specific, nor was it adequate to the object in view in that case. We do not understand the court to say that quo warranto, or an information of that nature, had ever been resorted to in Maryland to remove one from a public office which he was illegally holding, for such is not the fact, as we have seen. All that was said by the court in that case, in this connection, was for the purpose of meeting the suggestion that quo warranto was a legal remedy, and that therefore mandamus would not lie. We think a conclusive answer to this suggestion would have been that the proceeding suggested in lieu of mandamus had never been authorized by the Legislature to be used in such a case in Maryland."

It seems therefore that mandamus is not only the appropriate remedy, but that, in this state, it is the only remedy by which one may be removed from an office to which he is not legally entitled. Learned counsel for the appellant, adopting the view announced in Kean v. Rizer, 90 Md. 507, 45 Atl. 468, that if the appellant was disqualified his election was void, and relying upon the provisions of section 105 of the charter, requiring the mayor and city council to fill vacancies "in the office of mayor or any councilman," contend that the petition should have been filed against the mayor and city council to compel them to fill the vacancy. But assuming, without so deciding, that the court could in such a proceeding determine that a vacancy exists and order the mayor and city council to fill it, it could not give a judgment of ouster against the appellant. The relief here sought is the removal of the appellant from the office, and the appellees cannot be denied the writ of mandamus to compel him to vacate the office on the ground