(dissenting) — I am unable to agree with the conclusion reached by the majority. As I view the facts of this case, they do not present the question of *462title to the office of councilman at all, hut merely the question of relator’s right to retain possession of the office of councilman and the exercise of his duties pertaining thereto; he being in possession of the office and never having been removed therefrom or adjudicated as not being entitled to the office by any court, body or person having jurisdiction to determine his qualification or right to the office. It is plain from the record before us that relator was lawfully elected to the office of councilman and was peacefully occupying and in possession of the office performing his duties incident thereto, when the mayor, evidently being of the opinion that relator had removed from the ward from which he was elected and thereby became disqualified, summarily refused to recognize relator’s right to perform the duties of the office. By an express provision of our statute relating to the government of cities of the third class, to which class Olympia belongs, it is expressly provided that “the city council shall judge of the qualifications of its members.” From a reading of the statutes relating to the government of cities of the third class, it is plain that the mayor has no voice whatever upon: the question of the qualifications of a member of the council, whether such question arises upon the canvassing of election returns, upon removal proceedings in the council after election, or upon the arising of such question in any other manner.
It may be that the courts have jurisdiction, under certain circumstances, to inquire into the qualifications of members of the council concurrent with or revisory of the jurisdiction-of the city council in that behalf; but it is, to my mind, clear that this pretended decision of the mayor upon that question is a mistaken usurpation of power on his part. To my mind, it is no more *463within the power of the mayor to exclude a duly elected and acting councilman from the performance of the duties of that office than it is within the power of the chief of police of the city to do so by physical force. It is not a question of trial upon the merits of the question of relator being entitled to the office he seeks to retain, but is a question of the power of the mayor to interfere with the perfomance of the duties of relator as councilman, upon the theory that he is no longer qualified to hold the office.
If quo warranto is the proper remedy to inquire into the asserted right of relator to continue in the office of councilman, and the mayor is of the opinion that relator is not entitled to continue to exercise the duties of the office, that remedy should have been invoked by the mayor to test the right of the relator in the premises. • Further, if quo warranto be the proper remedy to test relator’s right upon the merits, and the merits are here, I am unable to see why the allegations of this complaint should not be treated as an information in that behalf. It- seems clear to me the allegations of the complaint state a cause of action, viewed as such information. The necessary parties are before the court for the trial of the question of title to the office, if that be the real question here. "Why not then so treat the complaint rather than a complaint or petition in mandamus, simply because the proceeding happens to be so designated by relator’s counsel?
This apparently is a case within itself, not now of much importance, since it has to do with a term of an unsalaried office now nearly expired; but the power of the mayor assumed to be exercised and sanctioned by the majority of this court, it seems to me, is fraught with far-reaching evil consequences.
Pemberton, J., concurs with Parker, J.