Sherburne v. Horn

45 Mich. 160

• Court: Michigan Supreme Court
• Decided: January 7, 1881
• Status: Published

Opinion

Marston, C. J.

Relator asks for an order requiring the respondent Denny Larke, clerk of the county of Presque Isle, to show cause why he should not issue and deliver to relator a certificate of his election as sheriff of said county, it appearing, as claimed, that the returns on file in the clerk’s office show him to have been legally elected, it farther appearing that a certificate has been issued and delivered to another person.

Were it clear that this matter could be disposed of from an inspection of the returns we should be disposed to grant the order. The party who has received the certificate may deny the correctness of the returns, and thus an issue would be raised which would have to be sent down for trial. Or if an opportunity were not given him in the present case to do so, and a certificate were given the relator, still the controversy would not necessarily be ended, and a resort to proceedings in the nature of a quo wcvrranto would inevitably follow. Under such circumstances the only benefit relator would gain by the present proceedings would be a certificate •of election prima facie entitling him to the office: — in other words a shifting of the burthen of proof. It is not advisable to resort to mandamus unless substantial if not final relief can be given, and under all the circumstances, as the issuing of such a writ is discretionary, we think it best not to grant the order.

The other Justices concurred.