Olds

delivered the opinion of the court. Heydenfeldt, Justice, concurred.

This is an application for an alternative mandamus to the defendant, to compel him to hand over to the relator the books and papers of the office of the Clerk of the Superior Court of the City of San Francisco, and to allow him to enter upon the discharge of said office, to which he claims to have been elected.

To the general allegations contained in the application of the relator, the defendant filed a general demurrer, on the ground that the relator should have sought his remedy against the defendant by an action upon information in the nature of a quo warranto, and not by a writ of - mandamus; and also a general answer denying the facts on which the election is claimed; to which the relator has demurred and also replied.

The court below sustained the demurrer and dismissed the petition, on the ground that the proceeding by mandamus was not the proper remedy, and we are asked on appeal to reverse this decision.

It is contended, on the part of the appellant, that the writ of mandamus is the proper remedy both at common law and under the statute of this State; that the statute is explicit, and gives this…

whose dissenting opinion, in 5 Hill, is relied upon by the appellants, has repeatedly maintained this doctrine. See 10 Wend. 395 . He says, “ The proposition is, I believe, universally true, that the writ of mandamus will not lie in any case where another legal remedy exists, and it is used only to prevent a failure of justice.” He further observes: “The principle which seems to lie at the foundation of applications for this writ and the use of it is, that whenever a legal right exists, the party is entitled to a legal remedy, and when all others fail, the aid of this may be invoked.” And he cites'as authority upon, this point, 3 Burr. 1267; 1 T. R. 404; 3 lb. 651; Gowper, 378; Per Buller, J„, 4 Bacon Abr. tit. Mandamus, 496; 12 Johns. 415 ; 19 lb. 259; 1 Cowp. 419. Again, in 25 Wend. 680 , Nelson, (then Chief Justice), says, “ After full consideration, I feel persuaded that the relator has a perfect legal remedy by action, which upon settled principles forbids a resort to the writ of mandamus.”

Indeed, all the cases cited by the appellants, and which it is claimed overrule this position, will be found to depend upon the ground that no other remedy is adequate, specific, or…