county commissioners to levy a tax notwithstanding the fact that they had been forbidden to do so by an injunction of the state court. Mandamus will issue to compel the proper officers to hold an election or to compel the attendance of officers whose duty it is to act with a board in electing another officer.98 To compel the performance of ministerial duties affecting the public, any taxpayer has sufficient interest to enable him to apply for the writ.99 Though this is the general rule, there is some conflict.1

Where the interest is merely private, the applicant must show some special interest not shared by all the other members of the community. Where a writ of mandamus has been issued, a change in the personnel of the board to whom it is directed will not abate the writ. But it has been held by the same court that a writ issued to the head of a department would abate on his death or retirement from office, for the reason that having had no opportunity to be heard, the successor to the office, against whom no judgment had been issued, could not be adjudged in default.4

93. Control by prohibition. The writ of prohibition is a discretionary writ for the purpose of preventing further proceedings by an inferior judicial 97 Atty. Gen. v. Com. Council, 78 Mich. 545.

98 Wampler v. State, 148 Ind. 557.

99 Union Pacific Ry. Co. v. Hall, 91 U. S. 343; also see Brown v. Russell, 166 Mass. 14, LEADING ILLUSTRATIVE CASES.

1 Wellington et al., Petitioners, 16 Pick. 87 (Mass.).

2 People v. Walker, 9 Mich. 328.

3 Commissioners v. Sellew, 99 U. S. 624; Thompson v. U. S., 103 U. S. 480; Murphy v. Utter, 186 U. S. 95.

4 Secretary v. McGarrahan, 9 Wall. 298 (U. S.); U. S. v. Boutwell, 17 Wall. 604 (U. S.).

or quasi-judicial tribunal. It lies not only where an inferior tribunal is proceeding to adjudicate a matter over which it has no jurisdiction, but also to prevent the exercise of unauthorized power in a case where the tribunal has jurisdiction over the subject-matter of the case. It is a proper remedy to prevent further proceeding by an inferior tribunal after an appeal has been taken to a higher court. It is within its limited sphere analogous to injunction in its much wider sphere.

5

6

The nature and purposes of the writ have been very clearly stated by Chief Justice Shaw in Connecticut River Ry. Co. v. County Com'rs. In this case the relator applied for a writ of prohibition to prevent the county commissioners from taking his land for a passenger station in accordance with a statute making no sufficient provision for paying the His contention was that the statute was unconstitutional and hence conferred no jurisdiction on the commissioners. The Chief Justice says:

owners.

"A writ of prohibition, issuing from the highest court of common law, is the appropriate remedy to restrain a tribunal of peculiar, limited, or inferior jurisdiction from taking judicial cognizance of a case not within its jurisdiction. * * The fact that the

*

remedy by petition for a writ of certiorari will be open to the land-owner, after final judgment, affords no reason why the court should now refuse a writ of prohibition, and thereby put the petitioner to the

5 Appo. v. People, 20 N. Y. 531; see also State Railroad Tax Cases, 92 U. S. 575, LEADING ILLUSTRATIVE CASES.

6 Fite v. Black, 85 Ga. 413.

7 127 Mass. 50.

trouble, expense, and delay of a trial before a tribunal which has no jurisdiction of the case, and to whose jurisdiction the petitioner has objected at the * * The fact that an outset of the proceedings. * agent of the commonwealth is the adverse party, in the proceedings before the county commissioners, affords no reason for refusing the writ. A writ of prohibition, like a writ of mandamus or of certiorari, is properly sued out in the name of the crown or the state; the only necessary defendant is the tribunal whose proceedings are sought to be restrained, controlled, or quashed; and there is no class of cases where the authority to issue writs of prohibition is better settled than in those of courts martial, ecclesiastical courts, or inferior courts of common law, assuming to take cognizance, in excess of their jurisdiction, of criminal prosecutions."

CHAPTER XII.

TERMINATION OF OFFICIAL RELATION.

94. Expiration of term.-The most natural and ordinary way for the official position of an officer to terminate is by the expiration of the term for which he was chosen. This term may be either for life, for a definite number of years, or until his successor shall have been duly elected and qualified. This latter proviso, in order to avoid an interregnum, is sometimes placed in the constitution or statutes and sometimes implied by the law. If, however, an officer seeks to avail himself of this proviso to hold longer than he is lawfully entitled to office, his right may be tested by quo warranto proceedings.

95. Death. In the case of a single officer it is clear that his official relation is terminated by his death, but in the case of a board consisting of three or more members the death of members will not affect the status of those remaining, and, provided a majority remain, it will not affect their power to act. It is the policy of the law to guard against the failure of a public service, and where this end can be accomplished by majority action it is allowable.

96. Abolition of office.-As an office is neither a contract nor a property right, it may, if not protected by the constitution, be abolished by the legislature.

8 State v. Bulkeley, 61 Conn. 287.

People v. Palmer, 52 N. Y. 83.

Where this is done, the official relation of the officers is of course terminated. It was decided by the Supreme Court of the United States in Butler v. Pennsylvania1o that public offices do not come within the provision of the Constitution of the United States against the impairment of the obligation of contracts, and that the legislature might decrease the pay or abolish the office of canal commissioners, without subjecting the state to a suit for damages.

97. Abandonment of office.-Though the state may abolish the office and thus end the term of an officer, the right of the officer to bring the official relation to an end by abandoning his office-i. e., ceasing to perform the duties of it-is not so universally admitted. The state may, if it chooses, compel him by mandamus to continue until the end of his term to perform the duties of the office. At any rate, a neglect of duty is generally considered merely a cause for removal and not ipso facto a termination of the relation. A persistent neglect of duty indicating an abandonment would be proper grounds for quo warranto proceedings where no other more convenient method of removal is provided.

98. Loss of qualifications.-Where residence within the district is one of the qualifications for holding office, a removal from the district for a considerable length of time will be a sufficient cause for removal from office, and if the change of residence is permanent it will create a vacancy.12 Thus, where

10 10 How. 402 (U. S.).

11 People v. Williams, 145 Ill. 573.

12 Yonkey v. State, 27 Ind. 236.