specially concurring-; • •
Two' questions are presented by the record in this case: (i) Where two persons are claiming the right to the same public office, one in possession under priww facie legal right, can the other rightfully obtain possession by force? (2) If possession is obtained by force, can the one thus ousted be.reinstated by a proceeding in equity?
Arnold, at the regular election in November, 1910, was elected to the office of county assessor of the city and county of Denver for the term of two years, beginning in January, 1911. He duly qualified, entered into the possession of the rooms in which the business pertaining to assessor was transacted, as well as the records, books, and paraphernalia of the office, and was in possession of such office, discharging the duties thereof, on December 14, 1911. On that date, Honorable Robert W. Speer, mayor of the city and county of Denver, assuming that there was a vacancy in the office of'assessor, for that, entity appointed Mr. Hilts to that position. Hilts, .claiming to have qualified as by law required, proceeded to the rooms occupied by Arnold in his official capacity, and demanded possession thereof, and the books and records pertaining to the office of assessor. This was refused, when Hilts, aided by others, broke open the door of the rooms and by force took possession-, and ejected Arnold. Arnold then brought an action in the district court the purpose of which -was to restrain Hilts from interfering with him in the performance of his duties as assessor,-and requiring Hilts to re-deliver to him possession of the rooms, records, books and paraphernalia of the office until he, the plaintiff, was removed from the office of assessor according to law. This relief was denied, and Arnotó'has brought the cause here for review on error. ¡
*407On behalf of Hilts it is. contended that title to -a :public .office can not be.determined by injunction. This is correct. We have so'held in at least three cases; and : that title to a disputed public .office can only be established by quo warranto., or in a proper case in an election contest, .as prescribed by statute.—People ex rel. Hinckley v. District Court, 29 Colo. 277; Lawson v. Hays, 39 Colo. 250; People ex rel. v. District Court, 46 Colo. 1.
In. each of those cases, however, the facts were such that the rights of the respective parties could only be determined b)r ascertaining which of the litigants was entitled to the office in dispute. In none of these cases was the question involved of whether or not one in the possession of an office under a prima facie legal right, could .by injunction, restrain another from interfering with the •discharge of the duties of the one in possession until the right to the office was determined according to law. In fact, in .the Lawson case, it was stated that there was no charge to the effect that the defendants in the case were seeking to molest or interfere in any. way with the plain- • tiffs in discharging their official duties; hence, it was said the cases cited, to the effect that a public officer, either de -jure or de facto, rightfully in possession, and exercising the duties of his office, was entitled to an injunctiont against interference with him in the performance of suchi public duties, to the detriment of the public business, were not in point. In the case at bar, as stated at the outset,, the question is, whether or not one claiming title to a public office can, by force, oust another from the possession of such office, who claims to be rightfully entitled thereto under a prima facie legal right.
For a better understanding of the situation, it should be here stated that the contention on the part of Mr. Hilts is, that the decision of this court, in the Cassidy case, 50 *408Colo. 503, holding that by virtue of article XX of the state constitution and the charter adopted by the city and county of Denver, county offices and county officers, as such, were abolished, and that the officers to perform the functions of county officials were such as by the charter provided, thus overruling the decision in the Johnson case, 34 Colo. 143, which held that within the municipality of the city and county of Denver there were two entities, one a county and the other a city, and that officers of the former must be elected as provided by the constitution, and the general laws relating to officials, that Arnold is no longer entitled to discharge the duties of assessor, and that that office may now be filled by appointment by the mayor.
Arnold was elected at the regular election in the fall of 19x0, for the term of two years, beginning January following. He qualified, was peaceably inducted into office, and proceeded without question from any one to discharge the duties of the office, until questioned by Mr. Hilts. Arnold was, therefore, at least an officer de facto, at the time Hilts ousted him of possession. Whether the ■decision in the Cassidy case in any manner affected his office, or by that decision his rights thereto were in any manner different from what they were under the decision In the Johnson case, are in no sense involved in the proceeding before us. It may be that Hilts is now entitled to the office of assessor, but he has no power or authority to determine that question for himself, by forcibly ejecting Arnold, who, at least, is a de facto' officer, and taking possession of the records of the office. The law provides 3 tribunal and an appropriate proceeding to determine this question. That a public officer, either de jure or de facto, In the lawful possession of an office, is entitled to an injunction to restrain one who.disputes his right to it, from *409employing force to prevent him from discharging his official duties until the rights of the respective claimants are settled in the manner, and in the forum, which the law provides, is beyond successful dispute, both on principle and authority.—Hotchkiss v. Keck, 86 Nebr. 322; Callaghan v. McGown, 90 S. W. 319; Brady v. Theritt, 17 Kan. 468; Poyntz v. Shackelford, 107 Ky. 547; Blaine v. Chippewa Circuit Judge, 145 Mich. 59.
Any other rule would be detrimental to the public interest, by creating public confusion in the discharge of official duties, and invite a breach of the peace. The one m possession, if ousted by force, if his rights could not be protected by the courts, might resort to- force to regain possession, and if successful, the ousted party could again employ force to gain possession.
In order to preserve tranquility litigants must be required to settle their disputes in the forum which the law provides for that purpose. One who ejects another from an office rightfully in possession, under claim and color of title, will not be heard to say that by virtue of his wrongful act the latter can not be re-instated, except by a judgment in a proceeding to determine the title to the office.
We think all the propositions involved in this case are fully-settled by the decision of this court in In re Fire and Excise Commissioners, 19 Colo. 482. It was there held that the governor had no authority to forcibly induct his appointees into office, and that the rights of such appointees, as against the incumbents, could only be determined in an appropriate proceeding. If a claimant to an office is without authority to employ force to oust one in possession, having prima facie legal right to such office, then it must follow, that any threatened attempt of the claimant to employ force could be enjoined, and that *410if -'before .such' injunction was obtained, he'secured possession by force, the courts are clothed1 with authority, and it is-their duty, to reinstate the ousted official.