Dissenting.—This is a proceeding in quo warranto. The action was begun by John M. Hess, as plaintiff, who claimed the office of school superintendent of Yuma county, as against C. Louise Boehringer, defendant, who is alleged to have intruded into and to be in the possession of and exercising the duties of such office to the exclusion of plaintiff. The plaintiff, Hess, claiming the office, brought the action in his own name by first applying for and obtaining the leave of the court so to do. The situation to be untangled here arose by reason of the following rather novel proceedings on the part of the plaintiff, Hess. After obtaining the consent of the court so to do, and bringing the action in his *58own name, he obtained an order of the court to the effect that the title of the case be changed upon the register of actions on the records of the court to “The State of Arizona upon the Relation of John M. Hess, Plaintiff, v. C. Louise Boehringer, Defendant.” The order was made and allowed plain: tiff to file an amended complaint and have an alias summons issued. Pursuant to the order granted, the amended complaint was filed, showing the proceedings to be in the name of the state of Arizona on the relation of John M. Hess, plaintiff. In this state of matters the court determined that plaintiff had no authority or right to prosecute the action in the name of the state on his relation. The court denied plaintiff’s request for leave to file a second amended complaint to show that the action was being prosecuted by the plaintiff in his own name, and not in the name of the state of Arizona on his relation. This method was sought to be pursued by the plaintiff so as to revert back to the original status of the proceeding. Upon denying the leave requested, the court dismissed the case, but without prejudice. Prom these symptoms will a diagnosis of the case ascertain whether there be any matter inclining to sanguine circulating beneath the texture of this record. In fine, this court must determine if plaintiff has a right that can be preserved to him, and, if it so determine that he has such right, preserve it, even though he has misconceived the technique of legal procedure and thus complicated the situation and jeopardized the right. If there be such right it ought to be preserved, providing only that in its preservation no right of the other party will be violated.
Historically, the origin and exercise of the writ of quo warranto presents a fascinating study, but the very fascination of it very often occasions some perplexity in the mind of the student or practitioner. Anciently it was the king’s writ of right made returnable before his justices in eyre. By this extraordinary writ the king, as the very fountain and majesty of government, required a subject alleged to be exercising a special privilege to present himself and show by what authority he thus acted; the theory being that all privileges conferred upon an individual or corporation, and not enjoyed by the public generally as a matter of common right, were gifts from the crown, and so under the dominion of the king. *59It was a high prerogative and extraordinary writ of right to the king, and in its nature a public proceeding to correct a public injury. At the common law there seems to be no precedent of a quo warranto since the justices in eyre were abolished. About the time of Edward III the writ in its ancient purity fell into disuse because an information by the king’s attorney general answered the same end, and was copied from and framed upon the old writ. By the Statute of Anne, however, a wide departure was made, and the original purpose of the writ generally enlarged so that private individuals were permitted in certain eases, but, providing they first obtained leave of the court so to do, to file an information in the nature of quo warranto, even though a public interest was not immediately and strictly concerned in the proceeding. Under this Statute of Anne, however, the writ did not run in the name of the private person who invoked it, but the writ was issued and the proceeding was conducted in the name of the king. In the ninth year of Queen Anne this famous remedial statute on the subject of informations in the nature of quo warranto, in cases of usurpations or intrusions into offices and franchises of municipal corporations, was passed. This statute has furnished a model for those of many statutes, and, in substance, it has been very generally re-enacted in this country. I shall not pause for further digression into historical matters. Its historical significance is important here only that it may account for the predicament in which plaintiff places himself by his method of proceeding. This limited résumé is sufficient to indicate, however, that at common law and under the Statute of Anne and kindred statutes, the proceeding must be instituted and prosecuted in the name of the sovereign, or requiring the government always in some form to appear of record as plaintiff.
It has been aptly observed that: “"When, as has been a common occurrence, referenees "are made and discussions pursued concerning historical matters connected with the remedy, and with statutory modifications in England, in voluminous prolixity—sometimes to the edification, but oftener to the confusion of the practitioner or student—it should be borne in mind that such displays of erudition, whatever be their design, cannot possibly enlighten the reader upon the funda*60mental principles underlying the jurisdiction in quo warranto.” Spelling on Extraordinary Remedies, sec. 1767.
I am persuaded, therefore, that plaintiff became confused in the technique of legal procedure, in his effort to obtain the object of the remedy he sought, and from a consideration of its historical aspect requiring the sovereign or government in some way and in each instance to appear as plaintiff. In this view the significance of our statutory expression became obliterated.
Recurrence must be had to our statute, then, to measure the rights of the plaintiff in this case. I quote as relevant paragraph 3794:
“An action may be brought by the district attorney, in the name of the territory, upon his own information or upon the verified complaint of any person, in the district court sitting for the county for which he is district attorney, against any person who usurps, intrudes into or who unlawfully holds or exercises any public office or any franchise within said county; and it is his duty to bring the action whenever he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised: Provided, that any person claiming such office or franchise may bring such action in his own name by first applying for and obtaining the leave of said court so to do: And, provided, further, that if the office be a territorial office, the attorney general of the territory shall have like power herein vested in district attorneys. ’ ’
Paragraph 3795 also provides: “When such action involves the right to an office, the complaint must show the one who is entitled to the office, and the issues made thereon shall be tried, and the judgment rendered shall adjudge who is entitled to the office. ’ ’
The law-making power has the undoubted right to control and regulate the exercise of the writ and the use of the remedy; and, while its origin is ancient, its corpus, nevertheless, is not sacred beyond the legislative approach. The province of the court is narrowed, then, to ascertain what this statute really says, that is, what the law is. Arizona says that the proceedings may be brought by certain appointed governmental agencies in the name of the state, upon their own information, or upon the verified complaint of any per*61son. Here is a restriction designating certain officers who may invoke the exercise of the writ in the name of the state. But the statute also says that, in one instance, to wit, when a person claims a public office or franchise, he may bring the action in Ms own name as against any person who usurps, intrudes into, or unlawfully holds or exercises the same. And this is upon one condition only, that such claimant first obtain the leave of the court so to do. In the first instance the legislature has conserved the interests of the public in matters affecting the whole community alike, by the state proceeding through its appointed agencies and in the name of the state. While it is not essentially criminal, yet it is a quasi-criminal method of prosecution as well to punish the usurper by a fine for the usurpation of the office as to oust him. Bailey on Habeas Corpus (Quo Warranto), see. 315; Spelling on Extraordinary Remedies, see. 1768; Ariz. Rev. Stats. 1913, par. 1602. In the latter feature of the statute the writ is employed to try the right of a person claiming to an office, where his interest is a special and distinct interest and his damages are equally distinct, for if judgment be rendered upon the right of the person alleged to be entitled to the office in favor of such person, he may recover, by action, the damages which he shall have sustained by reason of the usurpation of the office by the defendant. Paragraph 1600, Ariz. Rev. Stats. 1913.
Where a person claiming an office brings the action in his own "name upon obtaining leave of the court so to do, the mode of proceeding in quo warranto is unencumbered with the burden of the criminal form, and is purely a civil action for the enforcement of a civil right. The injury asserted being peculiar to the individual, he is given the right of action in his own name if, upon application to the court, he is permitted so to do. It is the spirit and letter of our statute relating to quo warranto that grievances of a public character affecting the whole community alike (and of course the usurpation of a public office is such a grievance) must be investigated through the agency of a public officer. But it is also the spirit and purpose of that statute to employ the writ to try the right of a person claiming a public office at the suit of such person in his own name, provided, only, that he must first obtain leave of the court to so employ such writ. The *62statute has created or recognized an additional province of 'the writ wherein the interest of an individual in ending the claimed usurpation of a public office is other than such as is common to the public generally.
The statute in plain and unambiguous language says that any person claiming such office may bring such action in his own name by first applying and obtaining the leave of the court so to do, and if we are to yield to this language its ordinary acceptation, it will bear no other construction and interpretation than such as is embodied in the general statement. The plaintiff obtained such leave and brought his action, and though by his own improvident request he complicated the situation and jeopardized his right, the court was equally improvident in granting the request and permitting him so to do. In this situation it would subserve no useful purpose to deny plaintiff his day in court on his original complaint, and in- refusing to do so no right of the defendant will be denied.
By the Arizona statute it is not a matter of absolute right on the part of a private person claiming a public office to exercise the writ of quo warranto to try his title to the office, but a very wide latitude is given to the court in such an instance. Nevertheless, when the court in the exercise of such discretion permitted such proceeding to be brought in the name of a private person, its discretionary power is thereby exhausted, and the issues of fact and law as presented must at the trial be determined according to the rules of law as in ordinary cases. Spelling on Extraordinary Remedies, sec. 1777. Such a purpose should not be frustrated by any mere misconception of the technique of procedure in pursuing the object of the statute, when the result of such a misconception has been looked upon by this court as of no validity.
Frankly, the opinion of the majority recognizes not only its improvidence, but the invalidity of the order of the court permitting the amendment, and, in the same breath, brushes away the exercise of the court’s discretion in granting authority to Hess to file the complaint in his own name—which, upon this record, we must concede to have been the exercise of a legal discretion confided by the express words of the statute—and shutting the door of the court in the face of a suitor on account of a pure technicality in the method *63of procedure. The court may hold the word of promise to the suitor and then break it to his hope for a trifling consideration, and this on a misconception by both court and counsel of the technique of legal procedure. This,, indeed, is to palter in a double sense. The discretion of the court, when once exercised .under this statute, should not be thus frivolously bandied about. The exigency of this case may impel to a toleration of such procedure, but I doubt the expediency of denying a party his day in court to press his cause to a conclusion upon trifling considerations of purely technical procedure, whether that cause be impregnated with merit or the lack of it. Technicality is thus hoisted up by force of block and tackle above the principles of substantial justice and without necessity. Such does not tend to lessen a conception that brings the administration of the law into disrepute, nor allay a feeling that a court of justice is often a tournament of wit, and, being of wit and not of right, is often a delusion and a snare.
■ In my judgment the action of the lower court should be reversed, and the case remanded, with directions to strike from the files the pleadings, wherein, in case numbered 2042 in the lower court, the state of Arizona, upon the relation of John M. Hess, appears as plaintiff, against C. Louise Boehringer, defendant, and proceed with the case on the original complaint filed, granting full opportunity to the defendant to appear and make such defense to the action as she may be advised and as the law may require, each party to pay his own costs on this appeal, and the costs of the lower court to abide the final result of the case; this appeal being considered that of Hess in his own name. Such a course would preserve a right and trespass upon none, and such is the duty and ought to be the accomplishment of every court whenever possible.