dissenting:
When Hilts, and those associated with him, entered the room occupied by. Arnold, and,, as disclosed by this record, forcibly ejected the latter therefrom, ■ and took possession thereof, and of the books and other paraphernalia used by him in performing the duties pertaining to. the office of assessor, they were clearly in the wrong, and there is no theory under which their acts' in that respect can be justified .or excused. It is likewise equally true that all law-abiding citizens, will, and all others should, be required to refrain from .the use of force in an effort to establish their rights or supposed rights. ■ ■
rft..does.,not. follow, however,, .that when -rights are once established, even by force, a court of equity will, or can lawfully, compel a surrender of such rights and restore them to. one not lawfully entitled thereto. If A. has possession.of B’s.horse,.and.under a wrongful claim of ownership, or right of possession, or arbitrarily, refuses to surrender the same to B., .the latter, has no1 legal right- to assault A.-and-take from-him the horse. If he shquld do. so,-however, -no- court of.equity will compel B. to .surrender the horse to A. and- resort to a suit at law to-recover, the-same... The taking of the horse by. B. from the -possession -of A. constituted no- private wrong against A. -cognizable in-a court of . equity, though the manner of taking constituted-a public wrong, to-wit, a wrong against society. ■ So- here, if Arnold had possession of rooms, books and other .paraphernalia which-were-incidents of ai?. office to-which Hilts-had been, lawfully’appointed,-*411qualified'thereunder, and entered upon the;-’disch;árge of its ditties; and" the ffirmer réfúsed! tó 'surrender' su’ch'inci1 dents'of'the office'to Hilts,' the latter-had! no legal right to'assault Arnold and take the'rooms;‘books; paper's, etc.; ffom him." Having done so, hbwever, no court'of equity should compel Hilts to surrender‘such incidents of his office, and'resort to 'a suit at law to recover the same. If Arnold is not the de jure officer, and ■ Hilts is, the taking of the incidents of the office by Hilts from the-possession 'of Arnold; constituted-no private'wrong against Arnold 'cognizable in a court of equity, though • the manner of taking constituted a public .wrong, to-wit, a - wrong against 'society. ' The wrong consisted solely - in the manner of the act of taking, that is, in breaking the peace of society, and the retention, after taking, could in ’no wise be a wrong, either public or private. Arnold could have no interest in the office, unless he be the de jure officer. The interest of the public is two-fold: first, that'the peace of society be maintained; second, that the person in whom the law has vested the duty of performing public functions be permitted to do so. By the act of taking, the peace of society was disturbed, a public crime committed, and for that offense a punishment is 'prescribed by statute to be imposed upon the wrongdoers.
■ ' But the majority opinion concedes, that title to ah ’ office can not be tried in this character of a suit, but holds 'that this action was not brought to test the title to an office; that its sole pulpóse is to restrain another from forcibly taking possession of the incidents of such office, "require hini to return the same to the office, and to restrain him from thereafter preventing one theretofore in possession of such office, and in the performance of the duties pertaining thereto, from continuing to perform the same.
*412As a public office is an intangible thing consisting of the incidents thereof, an agency and duties to be performed, it is necessarily one entity; and as no one can be ousted from an intangible thing by force; the physical taking of rooms, books and papers incident to an office does not legally sever them from the office, and the act of taking by force is, in legal effect, a continuing act, I concede that a court of equity might, in a proper case, exercise its power to put a stop to the attempted act of severance. This, however, presupposes the existence of an office, an incumbent thereof holding under a prima facie title and performing the duties thereof, and the injunction can only restrain an “intruder,” not one legally entitled thereto. Such is the effect, I think, of the holding in the cases and authorities cited in the majority opinion, except those based solely upon statutes authorizing such procedure.
Hotchkiss, trustee, v. Keck, et al., 86 Neb. 322, 325, is the first case cited and quoted from upon this question. An inspection of the quotation and the case discloses that there was, without question, an existing office, an incumbent who had been holding the office under a certificate of election for two preceding years, and, under the státute, had a right to hold over until a successor was elected and qualified; and the defendant enjoined, though having been a candidate for election as successor to the incumbent, had not received a certificate of election, but the canvassing board had refused to issue to him such certificate. Thus the legal effect of the facts appearing constituted the party restrained, an intruder, one without right Or title to enter. Clearly in such case the title to an office is not involved. That opinion, after stating that it is the duty of the board of canvassers of the election returns, to determine whether a candidate for the office in *413question was elected, and, if so, to issue a certificate’to that effect, declares, that if they refuse the certificate “the candidate has no prima facie right to the office.” I can not make the meaning of that decision clearer than by quoting from the syllabus as follows: “If one without any prima facie right to an office attempts to take possession of the office and discharge the duties thereof, a court of equity, at the suit of the incumbent of the office, will restrain him from so doing.”
High on Injunctions, vol. 2, (4th Ed.), section 1315, is. also cited, and a cursory reading of the text would seem to support the majority opinion. The author of the text, however, cites but two cases: State v. Durkee, 12 Kan. 308, and Brady v. Sweetland, 13 Kan. 41, in support of the proposition.
In the former case a suit in the nature of quo warranto to oust certain alleged officers, contained a prayer for an injunction against such alleged officers and others as an ancillary proceeding. A temporary injunction was granted by the judge of the court below in accordance with the prayer of the complaint. Afterward the temporary injunction was dissolved as to such alleged officers. In 'holding that the temporary injunction was properly dissolved, the supreme court interpreted the quo warranto petition as alleging that the defendants therein were the county officers de facto, and probably de jura, and held that under such facts the state, as plaintiff, had no right to restrain them from the exercise of the duties and functions of their several offices pending the litigation, the syllabus on that question being as follows: “In an action in the nature of quo warranto against officers de facto, who claim to be officers de jure, it is not error for the judge of the court below to dissolve a temporary injunction granted to restrain such officers de facto from exer*414cising tíie' duties 'and functions of their respective offices 'pending the'litigation.”' Surely such case can'riot be áh ‘ arithority for the ’ doctrine announced in the majority Opinion, but directly supports the proposition, that an irf- ' junction' can never properly issue in a case of this character, unless'the undisputed facts' show that' the injunctive plaintiff'has primé facie title to the office and the enjoined "defendant has no such title.
The other case, Brady v. Sweetland, supra, cited’by 'High oil 'Injunctions in support of his text, and also in ‘the majority Opinion, was upon the following admitted "facts: ' B. was the treasurer of a school district, N. S. was ^ the clerk of said district, and I. S. was the director of the "samej and the three constituted the school'district board. W. claimed to be entitled to the office of treasurer thereof ’’instead of 'B., and had previously instituted an action against the latter in the nature of quo warranto to have his rights determined and to obtain possession of the ’"office. While that action was still pending, W., in' cdrijunction with one member of the board, undertook' ¥0 hire teachers and took possession of the school house. The school board, as represented by a majority thereof, asked for an injunction against W., and ‘his associate. ' The injunction as prayed was granted. Thus the case is orie wherein the party enjoined, admitted by the pleadings that the plaintiffs were such officers, an’d by reason of the institution of the quo watiranto proceedings also admitte'd that the party seeking the injunctive relief was actually in possession of the office and performing the duties ' thereof. Therefore, the enjoined defendant clearly cárne "within the definition of an intruder, one who in no sense had a prhna facie right to the office.
Braidy v. Theritt, 17 Kan. 468, is likewise cited in the majority opinion. The case in my judgment does not *415support Jhe .majority opinion. In that case T. and others , brought.suit against B, and others to restrain the latter from interfering with T. while discharging his duties as a member of the'council of the city of Wathena. The council ..consisted of five-members.. Four- were admitted, by. the. pleadings to.have been such members. The other member.was either T. or B. .Both claimed.it. T., it was admitted-, had been in the possession thereof under a certificate ..of election for the year previous, and continued, ujjder the law,- to hold .the office until his- successor was duly elected and qualified.. T. and B. were ,opposing candidates.for the office at-a subsequent election, and T. received the .certificate of election and qualified under the same as. his own' successor. ■ B. received, no certificate of dection-.iroxn any source, .and had never acted as .councilman, but the mayor refused 40 recognize T. and assumed to recognize.B. as the councilman. Thereupon two, who \yere admitted tp. be legal membei's of the council, to- . gethe.r with T., retired from the meeting. B. thereupon assumed to take the oath as a councilman, and with the other- two councilmen remaining, proceeded to do business as a city council. The court held that an injunction against B-. to prevent him interfering with T. in the discharge of the latter’s -duty as councilman, was proper:. . The facts of the case clearly show that B., no.t having received a -certificate of election, was-in no wise either a de jure or a de facto officer, and that T. was not only prima fade -the de jure officer, but. also actually the. de facto officer. The legal effect of the facts remove the . cáse from that class where the title to an office is involved. Under the. facts B. -comes clearly within the definition oían intruder, one having no prima facie title whatever. -
,. Poyntz v.- Shackelford; -107 Ky. 5-46, cited in the.majority opinion, holds,, quoting from other authorities,-*416that, “The actual incumbent of an office, whether de jure or de facto, if duly qualified and in office by virtue of a certificate of election issued by the proper officers, will be protected by injunction against unlawful interference with his possession thereof.” The opinion in that case discloses that the question of the title to the office was solely a matter of law, the facts being undisputed, and that the court determined that matter and granted the injunction in favor of the de jure officers who were also the de facto officers. Clearly it is not authority for the doctrine as applied in the case at bar.
The case of Callaghan v. McGowan, 90 S. W. 319, (Tex. Civ. App.), cited in the majority opinion, sustains an injunction issued in favor of those undisputedly in possession of an office under certificate of appointment, from interference by certain persons who in no wise claimed to be entitled to the office, but only that they had a right to take possession of the rooms and the authority to appoint some one to discharge the duties of the office.
Another case cited in the majority opinion is Kerr, et al v. Trego, et al., 47 Pa. St. 292. I think a careful consideration of that case clearly shows that it comes within the rule announced in Braddy v. Theritt, supra; that is, the legal effect of the facts removes the case from the class where the title to an office is involved. The undisputed facts were, that the term of office of twenty-one members of the council of the city of Philadelphia had not expired. That is, they were hold-over or continuing members. The law made it their duty to receive, at the city hall, on a day named, the new members thereof, (who had been elected in the respective wards), with a view to the due organization of the common council. Eleven of the continuing members, together with the president, clerk *417and assistant clerk of the council, met at the time and place designated by law, and received the new members, who had been duly elected in the respective wards. The minority of the continuing members of the council refused to participate, but turned aside and assumed to receive other persons claiming to have been elected in the respective wards as such members. The suit was instituted by the majority of the continuing members, the new members recognized, and the president of the council, to prevent interference with the transaction of business. The defense was, that there had been fraud in the wards in the election of certain members of the council recognized by the majority, and that others should have been recognized and declared elected. Clearly the enjoined associates of the minority had no certificates of election, and had no prima facie title to the office, while those associating with the majority did have such certificates, and, therefore, prima facie title.
Conover v. Devlin, 24 Barb. (N. Y.) 587, is conceded in the majority opinion to be based upon a statute, and, therefore, has no application here and need not be considered.
Huntington v. Cast, et al., 149 Ind. 255, 259, also cited in the opinion, involves a like principle recognized in Braidy v. Theritt, supra, and Kerr, et al. v. Trego, et al., supra. The facts admitted by the pleadings presented only a question of law which the court determined, and held that the parties enjoined were claiming under an alleged appointment that was absolutely void, the governor having appointed such parties to the supposed office that did not exist.
The only other case cited in the opinion upon the proposition now under consideration is Blain v. Chippewa Circuit Judge, 145 Mich. 59. The undisputed facts *418of that case disclose that H. and B. were opposing candidates for the office of recorder of a city. H. had been serving in that office for the preceding year under a certificate of election. The returns of inspectors of election were made to the city council, whose duty it was to canvass and declare the result of election, and furnish a certificate thereof to the successful candidate. The council refused to canvass the returns and no certificate was issued to either party. Thereafter a new city council came into office, and upon request of B., canvassed the returns of the inspectors and declared B. elected. B. thereupon claimed to have qualified as recorder and to be in full possession of the office, performing the duties thereof, when H. filed a bill for an injunction to restrain B. from intruding into said office until the title to the office should be lawfully determined in a proper proceeding. The injunction.was granted. The.old council, who alone had authority to canvass the returns of election, declare the result and issue a certificate, refused to do so. The new council subsequently coming into existence had no such authority, and the undisputed facts of the case' disclose that their attempted act in that respect' was a nullity. Therefore, the case comes clearly within the rule that the injunctive plaintiff had a prima facie title to the office, and the enjoined defendant had no such prima facie title, -that is, he had no certificate nor had he obtained prima facie title by judgment of court or otherwise.
I think the principle which I am here seeking to apply is clearly recognized in several cases by this court. In the People v. District Court, 29 Colo. 277, Q. had been appointed and held a certificate thereof from the governor to fill a vacancy in the board of county commissioners of Take county. The law authorized him to serve “till the *419next general election and until the election and qualification of his successor.” At a general election held after Q’s. appointment, P. had been duly elected as his successor and had received, and then held, a certificate of election from the proper canvassing board. P. holding such certificate was about to take possession of the office in which Q. was then serving. . Thereupon Q., still in possession of the office, sought the aid of a court of equity to enjoin P. from attempting to act as such officer,. and to enjoin the other members of the board from recognizing P. as such officer. The district court issued a temporary injunction as prayed, and commanded the other members of the board to recognize Q. until further order of the court. Thereupon P. and the other members of the board applied to this court for a writ of prohibition against the district court, and for an annulment of the order aforesaid. In granting the writ, and annulling the order-, this court, speaking through Chile Justice Campbell, at page 280 of the opinion, said:
“While plaintiff' Quinn protests that he is not endeavoring to have the title to the office which he claims, determined in that proceeding, yet in the very' nature of things the district court could not take a step in the case without entering upon an investigation of that very question. That a court of equity has not jurisdiction to try a disputed title to a public office is too clear for argument. That determination can be made only in ail action in the nature of quo warranto, or in an election contest, as prescribed by statute. What must the district court necessarily decide-before it can grant even a temporary writ? Certainly, it must investigate and determiné either as matter of fact or law, that at least a prima facié case of the 'right to the office is shown to be in the plaintiff. To this extent, therefore, there would be a decision that he *420had the better right to the office, and upon a final hearing, either upon a demurrer to the complaint, or upon a trial of the facts if the issue upon them is made, the court, before it can issue a permanent injunction, must necessarily hold that the plaintiff’s title is superior to that of his adversary. This can not be done in an equitable action.”
Indeed, the learned Chief Justice, further on in the opinion recognizes that some authorities hold, that under certain circumstances where a certificate of election is held by a claimant to an office, he may have a writ of mandamus to place him in the office as against a predecessor therein who, whether holding by election or appointment, claims that he is still entitled to hold because the election, for some reason is invalid, and that sometimes in favor of such certificate holder, an injunction has been granted, pending decision of title in quo warranto when such relief is necessary to protect public property, conserve great public interests, or prevent irreparable injury. He then says:
“But no well considered case can be found where such relief has been given to one not holding the certificate of election against the holder thereof, under facts such as this record discloses.”
Clearly, the case at bar does not come within the exception noted. The petitioner has not only failed to show the existence of a county office, but by his allegations as to the existence of the twentieth constitutional amendment, the decisions of this court, the adoption of a charter, the creation of the office of assessor thereunder, the appointment of Hilts thereto and the latter’s possession of such certificate and qualification thereunder, shows beyond question of doubt that the county office to which alone he has a certificate of election, does not exist, *421that the office created under the municipal charter, does exist, and that Hilts has the only' certificate of appointment or election thereto. Neither does he show that he is entitled to have the rooms, books, papers, etc., returned to him in order to protect public property, conserve great public interests, or prevent irreparable injury.
The rule which I think is recognized and established by the authorities, is as follows: Where a public office exists, (perhaps either de facto or de jure), and there is n de facto incumbent holding under prima facie title, he may invoke the powers of a court of equity to protect him in the possession of the office and the incidents thereof as against one that has no prima facie title thereto, but if the controversy arises between two claimants, each of whom has a prima facie title, it is clearly a dispute as to a title to a public office, and equity has no jurisdiction therein. The last proposition is the principle announced in State v. Durkeef, supra, The People v. District Court, supra, and I think recognized by other decisions herein reviewed.
The case at bar, however, does not come within the principle stated above. The power which created an office may abolish the same, annul the agency, or transfer the duties of the office to some other agency, and the incidents of the office are likewise affected as public instrumentalities. Though Arnold and Hilts claim the same rooms, books, papers, etc., their respective claims are based upon separate and distinct offices. The office to which Arnold was elected was a county office, created by the constitution and general laws of the state. The rooms, the books, etc., here in question were at one time incidents of that office. The same sovereign power, however, that created that office, abolished the agency thus created, and transferred the duties of the prior office to *422an agency to be designated by. a charter, brought into existence by the people of a municipality created by the constitution. The incidents of the prior office thus abolished, necessarily followed the transfer of the duties and vested in, and became incidents of, the new office thus created. In other words, the office to which Arnold was elected, and to which he lays claim in his complaint, was a county office; whereas the office to which Hilts was appointed, and to which he lays claim, is a municipal office. The twentieth amendment to .the constitution abolished county offices within the territory known as the city and county of Denver, and transferred the duties thereof over to other agencies to be named by the people of the municipality in a-municipal charter to be by them adopted, and thereby other offices were created and the duties, though not abolished, were transferred and became the duties of the newly created municipal office, and the rooms, books', and papers incidents thereof.
While some courts have held that an attempted creation of an office by an unconstitutional statute confers color of office, and that the incumbent of such an office under certificate of election or appointment, should be treated as a de facto■ officer, they have never held that the rule applies after the law, under which the office was attempted to be created; has been declared unconstitutional. The general rulé is, that where there is no office de jure there can be no officer de facto, and whenever an office ceases to exist, the rights of the incumbent terminate.—29 Cyc., pp. 1390, 1391, and cases there cited.
But, were we to assume that there could be a de facto officer where there is no office de jure, it would in no wise affect this controversy. The rule applies only where there is apparently such office' and never after a valid pronouncement that no such office exists. And it is im*423material whether the declaration of non-existence of the office is made in a suit to which the incumbent of the alleged office is a party, or whether it be made in some other proceeding, or by constitutional or legislative enactment. This is necessarily true, inasmuch as between an occupant of a public office and the people of the state there exists no property right in such office, the right being purely political. The people of the state may abolish such office and leave the late occupant without either recompense or redress.
This court declared in People v. Cassiday, 50 Colo. 503, that since the adoption of article XX of the constitution, and the formation of the municipal corporation of the city and county of Denver, there has never been within the limits thereof a county office, or county officer as such, except as the proposition may have been affected by the decision of this court in The People ex rel. v. Johnson, 34 Colo. 143, and that the holding in the latter case was erroneous. It necessarily follows, that upon the adoption of the constitutional amendment, and the formation of the city and county of Denver, the office to which Arnold claims to have been elected, instantly terminated, by reason of such constitutional pronouncement, but by reason of an erroneous decision of this court in the Johnson case, supra, the office apparently existed until the subsequent declaration of this court in the Cassiday case, supra, giving full vigor and effect to the constitution. Therefore, when the Cassiday decision became effective, it. was a judicial pronouncement that previously a constitutional amendment had abolished the office, but the office had apparently continued until that decision, and thus the matter is very clearly seen to be analogous to the apparent existence of an office attempted to be created by an unconstitutional law.
*424However, as the Cassiday decision became effective on November 23, 1911, and Hilts was not appointed assessor under the charter until December 14, 1911, there was an interval of time between those, dates in which Arnold performed the functions of the office, and it is argued that, therefore, he was necessarily a de facto officer in the office created under the charter. To make one a de facto officer, it is essential that he have-color of title thereto. Color of title is usually evidenced' by a certificate of election or appointment to the very office claimed, neither of which Arnold had. While it is true, color of title may exist when the acts of one assuming- to be such officer therein have long been acquiesced in as official acts, the time elapsing after the judgment in the Cassiday case became effective, and the appointment -of Hilts, however, is hardly sufficient for: that purpose. Moreover, it is always the duty of an incumbent holding ■without a certificate of election or appointment, to surrender the office to one possessed of a certificate of election or appointment. The certificate is the essential prinm facie evidence of the right to the office, and one without it can not lawfully hold as against one claiming under it. Nor can the former maintain an injunction against the latter from entering upon the discharge of the official duties. Such is the ruling of this court in the following cases: People, ex rel. v. District Court, supra; Lawson v. Hays, 39 Colo. 250; People v. District Court, 46 Colo. 1.
It does not follow, however, that the acts of-Arnold during the interval between the pronouncement in the Cassiday case, and the appointment and qualification of Hilts, are invalid. Under such circumstances, Arnold’s position was like unto those of one holding over after the expiration of a term. There was no one legally en*425titled to the term in the office created under the charter,' Arnold- entered and assumed to act -therein. As no one else was acting, or assuming to act, his-acts were valid.As held in People v. DeGuelle, 47 Colo. 13, 20, there was a vacancy under the law, “though there was some one actually and legally performing the duties of the office.” When Hilts was appointed and qualified to act, the term was thereby filled, and the one theretofore performing the. duties of the office, neither continued longer in the office nor to perform valid acts.
Suppose that after the majority opinion becomes effective Hilts should institute quo warranto proceedings against Arnold. The courts would doubtless hold, following .the Cassiday case, that Arnold must be ousted, as the office to -which he was elected was abolished by the constitutional amendment. The anomalous effect of -the holding herein would then be apparent. A court of equity has exercised its power in protecting Arnold in the possession of an office that has no existence, and compelling the return .to him of property which belongs only to another existing office occupied by another incumbent. Again, as “there can not be two different officers de facto in possession of an office for which one incumbent only is provided by law,” 29 Cyc. pp. 1391, 1392, and Arnold can only maintain this suit because he is a de facto officer in possession, it follows that Hilts, under the majority opinion, can not be a de facto officer. Because if Arnold is a de facto officer, he is necessarily legally in possession of the office entity and engaged in the performance of the duties attached to it. It takes these elements to constitute him a de facto officer. 29 Cyc., p. 1391. Now, the law is, “that the mere possessor of an office, without these other conditions, (being a de facto officer), is an intruder, whose acts have legally no effect.” 29 Cyc., p. 1392. *426And then again, “there can not be a de facto officer if a de jure officer is discharging the functions of the office in question.” 29 Cyc., p. 1931.
Applying these several rules of law to the facts of this case, we have this anomalous condition of things: Arnold maintains this suit because he is a de facto officer; Hilts, though actually performing the duties of the office, is a mere intruder whose acts have no legal effect, because “there can not be two different officers de facto, for which one incumbent only is provided by law,” and the acts of a mere intruder have no legal effect. However, as Hilts, who may finally be determined to be the de jtire officer, is actually performing the functions of the office under a certificate of appointment, and “there can not be a de facto- officer if a de jure officer is discharging the functions of the office in question,” 29 Cyc., p. 1391, Arnold is not a de facto officer and lacks an essential qualification to maintain this suit.
Finally, as Hilts undisputedly has a certificate of appointment to an office created by authority recognized under the constitution, and Arnold has no such authority to that office, and it is fundamental that injunction will not restrain a public officer from assuming to discharge the functions of his office, and it is said here that the things in controversy are simply incidents of the’ office, it would seem that this is not a proper case for injunction. Moreover, every consideration of- public interest requires that the status now existing be maintained, unless it is clearly established that the public functions are not now being performed by one in whom proper authority to that end is vested. It is conceded in the pleadings that Hilts was actually performing the duties of the office at and prior to the institution of this suit, and if is a matter of common knowledge that public officials and the public *427generally, dealing with him have recognized his acts as official. He has completed the assessment roll, extended the taxes and furnished the treasurer with his warrant for collection, constituting the authority of the latter official to collect state, county and city taxes, which the public are now paying. Moreover, section 5573, R. S. requires the assessor, or his deputy, on the first day of J anuary in each year, or as soon thereafter as practicable, to call upon each inhabitant of his county at the residence or place of business of such inhabitant, and deliver or leave for him or her the proper blanks for the return of the property of such inhabitant for assessment. It then 1 equires such inhabitant, upon the blank so furnished to make, under oath, and deliver to the assessor, between the first days of April and the twentieth day of May, a full and correct schedule and description of all the personal property of which such person was the owner on the first day of April of the current year. Other requirements as to other property held or controlled by such inhabitant are likewise exacted; all of this information, under oath, to be placed upon the blank so furnished by the assessor. As .one-half the time has transpired in which to transact the official duty imposed as aforesaid, before the time in which the duty resting upon the inhabitant to make his return, commences, it -would be proper to assume that the assessor is actually engaged in the transaction of such duty. However, such presumption need not be indulged, for it is a matter of common knowledge that Hilts and his deputies are now actually engaged in the transaction of such business, and thousands of such blanks, authenticated by Hilts as assessor, are now being distributed to, and left with the inhabitants of the city and County of Denver as the basis for the assessment for taxation .for. the year 1912. The acquiescence of the public, and the *428courts, in the acts of Hilts as an official is further evidenced by a suit- prosecuted against him in his official capacity, to prevent the extension of .the so-called three mill tax levy for county purposes. While that suit was based upon the alleged invalidity of the three mill levy, upon the ground that it exceeded the charter limitation, the cause of action as set forth in the complaint, recognized Hilts as the assessor. If he were not the assessor, clearly his acts should necessarily be enjoined, and while that question was not directly presented, nevertheless, the case and the court, in a measure, at least, recognized Hilts as- the asssessor. Not only was that suit so prosecuted in the district courts, but it was also brought to this court, and the validity of the levy recognized by a decision just rendered in Hilts v. Market, ante 382.
Again, when the district court in the case at bar, refused Arnold the relief for which he prayed, it approved, in a measure, the contention that Hilts was, at least, a de facto officer, and permitted him to continue performing public functions, which, if we are controlled by reason and precedent, are probably void, and necessarily so if Arnold is still in truth a de facto officer. It is not a question of advantage or disadvantage as between Arnold and Hilts. If Arnold is not the dé jure officer, it profiteth him nothing to be re-instated, as it is only a de jure officer that is entitled to the salary. 29 Cyc., p. 1393. The question is, the rights of the public. If Hilts is the de jure officer, it is certainly an injustice to the public to remove him from office, throw distrust upon the legality of his acts, and bring confusion to public interests. If Hilts is the de jure officer and is removed, and Arnold restored, and thereafter upon quo warranto• proceedings, Arnold is ousted and Hilts re-instated, the confusion and uncertainty in public affairs will, I fear, be *429greatly augmented, and far-reaching in its evil effect. A principle usually recognized by courts of equity is, to require the doing of no useless or absurd thing. I can not help but feel that what the courts have done in this case, with what is likely to follow, constitutes an example of “the game of shuttlecock and battledore” judicially played. .
As the facts are undisputed in the case before uss and present solely questions of law, I think this 'court should determine herein whether Arnold or Hilts is the de -jure officer and pronounce judgment accordingly, or, in ¡lieu thereof, affirm the judgment of the district court.
•. I am authorized to state that Mr. Justice GarriguEs concurs in what I have herein said.