(dissenting) — I dissent from the majority opinion. Because of the affirmative defense interposed by the respondent to the petition filed in the superior court, it should be stated that the petition alleged, among other things, that the petitioner “has not been removed from his said office of city councilman of the second ward by the city council of Olympia nor by anyone,” that he is “eligible to the office to which he was elected, being a voter and a resident of the city of Olympia, Washington, and a resident and voter of the second ward of said city,” and further, that no other person has been elected or appointed to said office and “that no one else is claiming said office. ’ ’ The salient feature of the affirmative defense to the petition is the allegation that, during his term of office, the petitioner disqualified himself as such officer by changing his residence to another ward, but there is no pretense of an allegation that the city council, which is the judge of the qualifications of its members, ever gave or offered him a hearing upon the charge or claim that he had disqualified himself as .an officer by changing his residence.
Under that state of the pleadings, if the petitioner was not entitled to a peremptory order in his favor, he was at least entitled to try out in the superior court the controlling question of fact as to whether or not he had changed his residence. That issue was presented by the petition and joined by the answer. It was the one important thing and question of fact presented by the pléadings. In the case of Watson v. Glover, 21 Wash. 677, 59 Pac. 516, this court said:
“Under our system of pleading, the name or designation given a complaint is immaterial and unimportant. Its sufficiency must be tested by the allegations which it contains. In Damon v. Leque, 14 Wash. 253 (44 Pac. 261), we said: ‘If a plaintiff sets forth *465facts constituting a cause of action and entitling him to some relief, he is not to be turned out of court because he has misconceived the nature of his remedial right.’ ”
Speaking of mandamus, this court said, in the case of State ex rel. Brown v. McQuade, 36 Wash. 579, 79 Pac. 207, as follows:
“It is a procedure under the Code, and any person who has a cause that calls for its invocation has .the same right to sue out the writ as he has to commence a civil action to redress a private wrong. As we said in State ex rel. Race v. Cranney, 30 Wash. 594, 71 Pac. 50, a proceeding in mandamus, ‘ . . . is a judicial investigation, the object of which is the determination of civil rights, the same as in any ordinary proceeding; not only the determination of rights, but their determination in such a way as to culminate in an effective judgment.’ In our practice, mandamus is nothing more than one of the forms of procedure provided for the enforcement of rights and the redress of wrongs. The procedure has in it all the elements of a civil action. ’ ’
If the appellant were questioning the right of another to hold office, or if some other person had brought proceedings to try out appellant’s right to hold the office, a different situation would be presented. But such is not the case. Failure to observe this difference, in my view, causes the apparent confusion now introduced by the majority opinion.
Of the cases relied on in the majority opinion those of State ex rel. McReavy v. Burke, 8 Wash. 412, 36 Pac. 281; State ex rel. Heilbron v. Van Brocklin, 8 Wash. 557, 36 Pac. 495; State ex rel. Blake v. Morris, 14 Wash. 262, 44 Pac. 266; Lynde v. Dibble, 19 Wash. 328, 53 Pac. 370; and State ex rel. Dent v. McLennan, 110 Wash. 16, 187 Pac. 408, were each a case wherein there were two parties claiming the same office, that is, one party hav*466ing possession of an office, or the right of possession of an office, that was contested by the one who instituted the action; while the case in mandamus of Kim-ball v. Olmsted, 20 Wash. 629, 56 Pac. 377, was a controversy between two persons for the same office, and it was held by the majority opinion that the relator was entitled to no remedy under the rule, applicable in that case, of summary removal by the appointive power.
There is a very clear distinction in the different kind of cases and the rules applicable with respect to the proper remedy. In 22 R. C. L., Public Officers, under the' sub-title of Legal Proceedings to Obtain Office, at § 111, p. 453, upon the subject of quo warranto, it is said:
“From a very early period of the law, the invasion of a right to hold and exercise the duties of a public office has been recognized as a legal wrong for which the law affords a remedy. The writ of quo warranto was an ancient writ to try the right of one holding a public office, and today an action of quo warranto, or an information in the nature of quo warranto, is the appropriate proceeding to try the validity of a title to a public office. The proceeding is now regarded as a civil remedy, and it lies only against one who is in-actual possession of the office. Quo warranto lies to oust an illegal incumbent from an office, not to induct the legal officer into it.”
While on the subject of mandamus with reference to the same general subject-matter, at § 112 of the same work it is said:
“Mandamus is not the proper proceeding by which to contest an election or to try a disputed question as to the title to an office. Yet a duly elected public officer may have a writ of mandamus to secure recognition of his right to the office and in general a person entitled to immediate possession of an office under a prima facie title thereto may enforce his right by mandamus. *467As regards reinstatements, mandamus is considered the proper remedy to correct an improper amotion from office and to restore to the full enjoyment of his rights a person who has been improperly ousted (Words italicized by tbe writer of this opinion.)
Such I understand to be tbe rule, from wbicb it manifestly appears that quo warranto, technically speaking, is not a remedy which is applicable under the facts presented by the pleadings in the present case. At least, the rights of the parties and issues of fact presented by their pleadings should have been tried out in the superior court and a proper judgment entered, as the relator chose to tender those allegations of fact.