I dissent in this case, but not because I believe that title to an office may be determined by injunction process. As stated by Judge Johnson, Judge Seehorn specifically disclaims that, in his return. The attorneys each agreed at the argument that that could not be done and I do not think it is in the case at all. The judge states in his return, as stated by Judge Johnson, that he was only proposing or intending to investigate whether Collins was, in truth, a de facto officer in possession of the office; and if he was such incumbent, whether relator was undertaking to intrude therein, take possession and turn him out by force.
The question presented by the return has not been decided in this State. The cases decided by our Supreme Court did not involve the question; and I do not deem it necessary to discuss it, or express an opinion on it, for the reason that prohibition, not being a writ of right, and its issuance being within the discretion of the court (Davison v. Hough, 165 Mo. 561, 575; High Ex. Leg. Rem., sec. 765), it should never be granted on the application of one Avho has himself broken the law in the matter in controversy. That the relator has violated the law by taking it in his own hands and substituting force for legal procedure or process, I regard as confessed by the motion for judgment.
And the unfit should be denied for the further reason that it is not allowed when the applicant therefor has a remedy by legal means, sufficient to afford the relief the case demands (State ex rel. v. Aloe, 152 Mo. *190466, 483; High Ex. Rem., sec. 770). Relator, in the first instance, could have had a summary remedy by legal process. And if, disregarding that remedy and using force, he should have been permanently restrained from seizing the office, its books, etc., he would still have had that remedy.
It must strike the most indifferent observer as a singular deficiency in our legal system that any one making claim to an office, however illegal it may be, could, with force and strong arm, invade the possession of the incumbent, take possession of the books, records, papers and their place of deposit, and turn him out, and he be left helpless.
And on the other hand, that an incumbent could willfully hold possession of such office after proper notice of the qualification of a duly elected or appointed successor, and the latter be left without remedy, except by the slow and tedious process of contest in court, which, in many instances, would outlast the term to which he had been elected or appointed.
Such unseemly condition presented itself to the mind of the Legislature long ago and a law was enacted to meet it, which has been carried in revision down to the present time. [Secs. 9097-9107, R. S. 1899.] It is provided by that statute that an officer shall deliver to his successor the records, books and papers of- the office; and that if he fails to do so any judge of the supreme or circuit. court may, on proper application, issue his warrant to the sheriff commanding him to take such records, etc., and deliver them to the successor named in the writ. But any one aggrieved by such warrant may likewise apply to a judge of the supreme or circuit court, and, on showing by affidavit that injustice has been or is about to be done by such warrant, the judge must issue a citation to the parties interested commanding them to appear before him, when a summary hearing will be had and the matter determined according to right and justice.
*191Happily, occasion for tbis summary procedure has rarely arisen. It has, however, been brought into requisition in two instances which have reached the Supreme Court. [Price v. Adamson, 37 Mo. 145, and Flentge v. Priest, 53 Mo. 540; s. c. 57 Mo. 515.] In the latter case, as first reported, the law was held to be constitutional, and it was held that the summary remedy provided did not determine or conclude the ultimate rights of the parties, and that such rights could be ascertained in proper legal proceedings.
It is thus seen that, the statute provides ample means for relator to obtain, in a legal and orderly manner, that which, we must assume from the pleadings, he was endeavoring to get by taking the law into his own hands. By this statutory means, unseemly conduct, disorder and breaches of the peace are avoided.
It follows the writ should have been denied and the petition dismissed.