(Dissenting). — The purpose and unquestioned object of this proceeding is to remove the deferid*459ant from the actual possession of the office of Governor, and thereby deprive him of the facilities with which to exercise the functions of the office — to depose defendant as the de facto Governor, and install the plaintiff into such office as such de facto officer pending the final determination of the contest instituted by the defendant against the plaintiff on December 6, 1916. The real matter for determination in this proceeding is the temporary possession of the office, and the right to exercise the functions of the office until the legal title thereto is' determined in another proceeding now pending.
The first question with which this court is concerned is: To what extent courts may properly interfere by mandamus with questions relating to the possession of public offices. Eminent text-writers have agreed as to the general rule which courts have followed in such cases. Thus Mr. High in the second edition of his valuable work (Extraordinary Legal Remedies, § 49, p. 54), says:
“In determining the extent to which courts may properly interfere by mandamus with questions relating to the title to and possession of public offices, it is necessary to recur to an important principle, . . . and which may be properly termed the controlling principle, governing the entire jurisdiction by mandamus. It is that, in all cases where other adequate and specific remedy exists at law for the grievance complained of, the writ of mandamus is never granted. Applying this principle to cases where relief has been sought to determine disputed questions of title to and possession of public offices, the courts have almost uniformly refused to lend their aid by mmidamus, since the remedy by information in the nature of a quo warramto is justly regarded as the most appropriate and efficacious remedy for testing the title to an office, as well as the right to the possession and exercise of the franchise. And the rule may now be regarded as established by an overwhelming current of authority that where an office is already filled by an actual incumbent, exercising the functions of the office de facto and under color of right, mandamus will not lie to compel the admission of another claimant, or to determine the disputed question of title. In all such cases, the party aggrieved, who seeks an adjudication upon his alleged title and right of possession to *460the office, will be left to assert his rights by the aid of an information in the nature of quo warranto, which is the only efficacious and specific remedy to determine the questions in dispute [citing cases in note 1, page 55], And whenever it is apparent on the face of the pleadings, that the issue presented involves a determination as to the person properly elected to an office or entitled to exercise its functions the writ of mandamus will be withheld. . . .
“Section 50. Aside from the existence of another adequate remedy by proceedings in quo warranto to test the title of an incumbent to his office, it is a sufficient objection to relief by mandamus in such a case that the granting of the writ would have the effect of admitting a second person to an office already filled by another, both claiming to be duly entitled thereto, and resort must still be had to further proceedings to test the disputed title. ’ ’
In McCrary on Elections, fourth edition, page 297, section 402, that eminent author says:
“It is well settled, as a general rule, that the writ of mandamus will not be granted in any case where another adequate and specific remedy is provided, and it follows that the eases are rare in which the courts will interfere by mandamus with questions touching the title to and possession of a public office. The courts have almost uniformly refused to grant the writ of mandamus in cases of this kind, upon the ground that an information in the nature of a quo warranto is the appropriate remedy for testing the title to an office, as well as for determining the right to the possession thereof. Where a party is in possession of an office as its actual incumbent, exercising its functions de facto and under color of right, mandamus will not lie to compel him to vacate and give place to another. In all such cases the party aggrieved will be left to his common-law remedy by quo warranto, or to such other remedy of like nature as may be specifically provided by statute. ... A few cases may be found which seem to hold a contrary doctrine. But it is safe to say that the rule as above stated is sustained by the overwhelming weight of authority.”
The issues as framed in this action certainly involve the trial of the right to the possession of the office, and the determination of one important question necessarily involved *461in the statutory action of quo warranto. In the statutory action mentioned the court is required to determine the right to possession of the office, because paragraph 1602, chapter 8, requires that:
“When a defendant against whom such action has been brought is adjudged guilty of usurping or intruding into or unlawfully holding any office, franchise or privilege, judgment shall be rendered that such defendant shall be excluded from the office, franchise or privilege, and that he pay the costs of the action. ...”
And as courts have the inherent power to use all sufficient process to make their orders and judgments effective, quo warranto furnishes an adequate remedy for, not only the trial of the legal title to an office, but also a complete remedy for the removal of one in possession of the same, and the installation of the party adjudged entitled to such possession. I can find no peculiar circumstances surrounding this case which would tend to exclude it from the general rule, above mentioned, and place it within any exception, and none has been pointed out in the oral argument or in the briefs. On the other hand, I do find circumstances which have impelling persuasive force for holding this case within the general rule.
The fact that a statutory contest of the election was commenced on the sixth day of December, 1916, immediately after the Secretary of State announced the results of his canvass of the returns of the election; that such proceeding had progressed to an advanced stage of joining issue and preparation for final trial before the plaintiff could or did in fact commence this action; and we are justified in presuming that such proceeding will be prosecuted with due diligence to a final conclusion, and when concluded will definitely settle all of the questions thus raised, as well as the questions here raised, and full and complete relief, final in its nature, can be given this plaintiff. Thereby he is not required to resort to quo warranto, and the delay incident thereto, by a dismissal of his application for a writ of mandamius by this court in order to obtain the full measure of relief to which he may be entitled in law.
Another circumstance worthy of consideration in connection with the necessity of granting the writ in this case is *462the alleged fact, appearing in the defendant’s return, that the plaintiff is the duly elected, qualified, and acting state tax commissioner of the state. The plaintiff does not deny the existence of this fact, but demurs to the allegation and moves to strike because of its immateriality, thereby admitting the existence of the fact. Paragraph 4822, Civil Code of Arizona of 1913, is as follows:
“No member [of the state tax commission] shall hold any office under the government of the United States, or of any other state. Each of said members of the said commission shall devote his entire time to the duties of the office and shall not hold any other position of trust or profit, engage in any other occupation or business interfering with, or inconsistent with his duties, or serve on or under any committee of any political party.’’
The plaintiff contends that his election to the office of Governor operates in law as a removal from the office of state tax commissioner. I am clearly of the opinion that such is the legal effect of holding another office, the duties of which conflict with the duties of the office already held by the party. But plaintiff’s election to the office is questioned, he is not in possession of the office, and :is not holding the office of Governor, but is holding the office of state tax commissioner. Consequently plaintiff is not violating the letter of paragraph 4822 by seeking the possession of the office of Governor while he remains cte facto state tax commissioner, and if the tribunal now trying the contest case determines therein that plaintiff has received the highest number of legal votes for the office of Governor and consequently declares he has been duly elected to that office, such determination has the legal effect of causing the office of state tax commissioner to become vacant upon the date of the going into effect of such judgment, and delivery to him of the possession of the office thereunder, for the reason he ceased ■ to be the tax commissioner when he became entitled to hold the inconsistent office of Governor and actually begins to hold that office.
I can conceive of few, if any, possible injuries to the public from such contingency. The mere election of a party who already holds an office does not have the effect of removing bim from the office already held by him, but assuming the duties *463of another office to which he is elected has that legal effect. On the undisputed facts in this case, the office of state tax commissioner filled by the plaintiff did not become vacant by operation of law on January 1, 1917, conceding that plaintiff was elected to the office of Governor and entitled to its possession on that date. Legal title and actual possession, and actual exercise of the functions of the office, are necessary to effect the removal from and cause the vacancy in the prior held office, by operation of law. Under, the facts in this case the plaintiff remains the state tax commissioner de jure. He will continue in such office, so far as this case is concerned, until he legally acquires the possession of the Governor’s office as the legally elected Governor of the state, or until his term of state tax commissioner otherwise terminates.
If plaintiff is put into the temporary possession of the office of Governor by this court’s extraordinary writ of mandamus, such possession, so acquired, would not necessarily remove him from the office of state tax commissioner. Such order would have that effect, if it should thereafter be authoritatively determined that he is the legally elected Governor, but not otherwise. In case this court removes the defendant from the office, and gives the plaintiff such possession, and thereafter the proper tribunal determines the contest in favor of the plaintiff, then, in such case, no injury would result to anyone. On the other hand, if such tribunal determines the contest in favor of the defendant, a very different matter would be presented. The plaintiff would have remained the de jure state tax commissioner while he was exercising the duties of Governor de facto — while he was holding another position of trust de jure in plain violation of the inhibitions of paragraph 4822, supra.
Where do the necessities of the case require the removal of one person from the office of Governor, and the installing of another in such office, so long as a doubt exists of the justice of such removal and installation? Do the necessities of the case require that the plaintiff, and not the defendant, exercise the duties of the Governor’s office, even though hereafter it may transpire that defendant, and not plaintiff, was and is entitled to the office of Governor, and that the plaintiff remained the state tax commissioner while he exercised the duties de facto of Governor?
*464No injustice would result to the public if the defendant continues to exercise the functions of the office until the title to the office is settled, and no apparent injustice would result to the plaintiff from the defendant’s holding the office of Governor, so long as the plaintiff continues to hold the office of state tax commissioner, because he is not permitted in law to hold any other position of trust or profit while he holds the office of state tax commissioner. On the other hand, if this court deposes the defendant, and installs the plaintiff in the office of Governor, and later the constituted authority should determine that defendant, and not plaintiff, is the legally elected Governor, and gives the defendant possession of the office, then in the meantime the plaintiff has held two offices, that of Governor de facto, and that of state tax commissioner de fare, and thereby has been enabled to violate the inhibition of a plain statute. The public interests in such event are seriously injured, and injured directly by reason of an order of this court. Here is a very substantial doubt of the necessity or propriety of issuing the writ.
The undoubted rule is that the exercise of the jurisdiction in mandamus rests, to a considerable extent, in the sound! judicial discretion of the court, and cases do arise in which, although the applicant for relief has an undoubted legal right, for which mandamus is the appropriate remedy, the court may, in the exercise of a wise discretion, still refuse the relief. High on Extraordinary Legal Remedies, § 9 ; Spring Valley Waterworks v. San Francisco, 52 Cal. Ill, 117; Spring Valley Waterworks v. Bryant, 52 Cal. 132, 140; Wiedwald v. Dodson, 95 Cal. 450, 30 Pac. 580; People v. Board of Suprs., 185 Ill. 288, 56 N. E. 1044; People v. Rock Island, 215 Ill. 488, 106 Am. St. Rep. 179, 74 N. E. 437; People v. Rose, 211 Ill. 252, 71 N. E. 1124; People v. Board of Trade, 193 Ill. 577, 62 N. E. 196; Board of Excise of Oklahoma County v. Board of Directors of School Dist., 31 Okl. 553, Ann. Cas. 1913E, 369, 122 Pac. 520; State v. Enloe, 121 Tenn. 347, 117 S. W. 223; Jacobsen v. Chicago, 191 Ill. App. 511; State v. Bank of Conception, 174 Mo. App. 589, 594, 163 S. W. 945; 26 Cyc. 145; 14 Am. & Eng. Ency. of Law, 97. “The writ of mandamus issues only in case of necessity, to prevent injustice or great injury. If there is a doubt *465of its necessity or propriety, it will not go.” 26 Cyc. 146, and supported by cases cited in note 46.
From the facts before the court, the court is unable to determine whether greater' injustice will result from issuing the writ than from refusing the writ. This seems evident to me. Therefore I am of the opinion that the necessities of the case do not require the issuance of the writ to prevent injustice or great injury, and that plaintiff is furnished an adequate remedy at law by the contest proceeding for a full measure of the relief to which he is entitled. He is not required to, but may resort to still another adequate remedy given him in quo warranto.
I oppose the issuance of the peremptory writ on the facts presented in this case.
On general doctrine governing mandamus to compel surrender of office, see note in 31 L. R. A. 342.
On mandamus to compel one usurping office to turn over papers, see note in 35 L. R. A. (N. S.) 528.
On right to attack prima facie title of relator in mandamus to obtain office, see note in L. R. A. 1915A, 832.