¶1(concurring) — I concur' in the result of the majority opinion and in that portion thereof which holds that the plaintiff, having elected to proceed by mandamus to compel the performance of a ministerial duty, thereby abandoned or waived whatever right he theretofore had to bring a common law action for damages resulting from the original refusal of the officer to perform such ministerial duty.
¶2As to the other question, whether or not a person seeking to recover damages resulting from a false return in a mandamus suit must recover his damages in the *377mandamus proceeding or may proceed in a separate suit as in the ancient common law manner of a suit upon a false return, I express no opinion, because such question is not lodged in this ease. The petition in this case does not seek damages arising from a false return. No mention of false return is made in the petition nor does the evidence in this case °shoiv that a false return loas in fact made.
¶3It therefore follows that the question as to which way and how he must travel when he does so seek, whether he must go the modern way pointed out by statute (Sec. 2551, R. S. 1909) and have his damages assessed in the mandamus proceeding or if he prefer, go the “obsolete” way (Merrill on Mandamus, sec. 268, page 334), as by independent suit upon a false return, is an interesting question, but one which we need not and therefore should not now determine.