Except as to the remedy we are entirely in agreement with the views of the court as above expressed. That is to say, we are satisfied, 1. That the intent of the charter provision relied upon was to require such appointments to the election board as would secure, as far as possible, an equal representation to the two political parties who had cast the highest vote for governor or electors at the election next preceding such appointments, and that, upon the facts stated in the petition, it was the duty *Page 185 of the mayor to fill the vacancies in the election commission from members of the Independence League; and 2. That political parties, as such, are legal bodies beneficially interested in securing such appointments, and entitled to maintain legal proceedings in that behalf.
We are not satisfied, however, that where the mayor has made his appointments, and the offices are thereby in fact filled, he can be compelled by mandamus proceedings to make other appointments, until it has first been determined, in some proceeding where it can be effectually determined as to all parties interested, that the appointments already made are illegal. The opinion concedes that no such determination can be made in this proceeding, and for that reason the dismissal of the proceeding as to King and Apperson, the appointees, has been ordered. The question of the eligibility of one elected or appointed to public office to hold such office is ordinarily determined in a contest proceeding provided by statute or in the proceeding of quo warranto, in either of which the party whose right is assailed is a necessary party, and the effect of the judgment therein is to oust him from the office or to establish his right thereto. We have found no decision holding that such question can be determined in any other way, and it may be claimed with much force that until the question is legally determined in some such proceeding, the appointments cannot elsewhere be held to be absolutely void, and the appointing power compelled to proceed as though no appointments had in fact been made.
However, as a majority of the court has decided in favor of the appropriateness of the remedy of mandamus in this case, a definite expression of opinion on this to us doubtful point is unnecessary. *Page 186