The Territory, ex rel. McKinnis, v. Hand.
The sections of the code referring to and regulating the remedy by mandamus, speak of it as the "writ," and "writ" it should be. (§ 695, 696, 697, and following sections to 706, inclusive.)
A writ is defined to be: " A mandatory precept, issued by the authority, and in the name of, the sovereign or state, for the purpose of compelling the defendant to do something therein mentioned. It is issued by a court or other competent jurisdiction, and is returnable to the same. It is to be under the seal, and is directed to the sheriff or other officer lawfully authorized to execute the same. (3 Blackstone, 273; 1 Qidd's Practice, 93; Gould's PI. & Pr., ch. 2, § 1; 2 Bouvier's Diet., 680.)
It may be contended that § 8, p. 510, Code Civil Procedure, obviates the necessity of the writ being under seal, because it is there said that the word "writ" signifies an order * * in writing, issued in the name of * * a court or judicial officer. If it said, issued by a court or judicial officer, instead of "in the name of," disputation would end, and "writ" and "order" would be convertible, as well as synonymous, terms. It seems that the fair construction of this provision, is that the order or precept must be tested " in the name of the court or judicial officer," and does not dispense with the necessity of being under seal.
The writ of mandamus should not issue, where there is a plain, adequate remedy at law. So held in a large majority of reported cases. Special reference is made to the following: People v. Sup. Chenango Co., 11 N. Y., 563; People v. Hawkins, 46 N. Y., 9.
The validity of an election in this territory does not and cannot be made to depend, under existing law, upon the publication of an election notice or call by the clerk. The privilege of voting is conferred by Congress, and certain qualifications are imposed on the voter by the Legislative Assembly. Those possessing the requisite qualifications are entitled to vote at any general election, and do not derive any political power or privilege from the act of the county clerk, in publishing an election notice, nor would they lose any by his omission to do so.
