The opinion
*522 Decided September 23, 1913.
On Petition eor Bbhearing.
( 134 Pac. 1196 .)
Mr. Justice McNart
delivered the opinion of the court on rehearing.
11. A petition for rehearing has been filed in this case by counsel for defendant on the ground that, if the title to an office is directly and unavoidably in controversy, the court will not grant relief by action of mandamus; and in advocacy thereof, counsel cite the case of State v. Williams, 25 Minn. 340 . In that case, the contest was over a political office. The county treasurer of one of the counties of the state had been, during the term of his office as county treasurer, elected to and had accepted the office of representative in the state assembly. The board of commissioners, believing the state Constitution inhibited the treasurer from serving in the dual capacity of county treasurer and representative, appointed another to the office of county treasurer. Possession of the office being withheld by the treasurer, the appointee of the county commissioners sought to compel delivery by mandamus.
In the legal controversy which ensued, the treasurer contended the only question for the court to consider was the title of the office of county treasurer, and that the correct proceeding would be one in the nature of quo warranto, and that mandamus could not be maintained. The court with fitness said:
“We think this is so. Unless his election to, his acceptance' and entry upon, the duties of the office of representative, operated to deprive Williams of the office of treasurer, the relator’s appointment is an absolute nullity. The question whether the relator has any right to the office depends altogether upon whether *523 Williams has any title to the same. That question lies at the threshold of the controversy. The relator cannot move a step until he has first made it appear that Williams’ title is at an end. Until he has done this, his certificate of appointment is prima facie evidence of nothing. And right here lies the distinction between the case at bar and the class of eases represented by Crowell v. Lambert, 10 Minn. 369 ( Gil. 295 ), and Atherton v. Sherwood, 15 Minn. 221 ( Gil. 172 ), ( 2 Am. Rep. 116 ). In that class of cases — in which the question is, who is prima facie entitled to the possession of the records and other property of a given office — the certificate of the auditor, which is conclusive until it is affirmatively overthrown, is properly held prima facie evidence that the person named in it has been elected, and is therefore, if he has duly qualified, entitled to the possession of the records and other property of the office. In that class of cases, the title to the office is not finally adjudicated; but the question of prima facie right is properly regarded as settled by the auditor’s certificate. But the case at bar is another thing entirely, because the question of title must be examined and determined against Williams, the incumbent de facto of the office, before the relator’s certificate of appointment can possess any value whatever. The case, then, is one in which the title of the office is directly and unavoidably in controversy, although the action is in form an action, not for the determination of the title, but for the recovery of possession of the records and other property of the office. The case falls, then, within the rule laid down by Mr. High that, tif it be apparent to the court that, instead of a proceeding whose object is only to get possession of the books and insignia of the office, the writ is invoked in reality to test the title to the office, and that the question of title is the real point in issue, it will refuse to lend its aid by mandamus. In all such cases, the parties will be left to a determination of the disputed *524 questions of title, by proceedings upon information in tbe nature of a quo warranto, since this is the only remedy by which judgment of ouster can be had against an actual incumbent, and the person rightfully entitled can be put into possession of the office. The court will not, therefore, upon an application for a mandamus to procure possession of official records, inquire into the right of a de facto incumbent of the office,- and if it is apparent that the relator’s rights cannot be determined without such an investigation into respondent’s title, mandamus will not lie’: High, Remedies, § 77, and citations. See, also, sections 49, 50, and citations. This rule appears to be exactly applicable to the present proceedings, which must therefore fail. ’ ’
That mandamus is an inappropriate remedy to try title to an office is a statement no one will be found to dispute. Equally well settled is the rule that mandamus will lie against the incumbent of a public office to compel the officer to deliver the books and papers thereof to one claiming to be his successor in office, for the reason the certificate of election issued to the claimant, with proof of his qualification thereunder, constitutes prima facie evidence of title to the office, and mandamus will lie to compel delivery of the emblems of the office to the person named in the certificate of election irrespective of his eligibility: Stevens v. Carter, 27 Or. 553 ( 40 Pac. 1074 , 31 L. R. A. 342).
In the case under solution there was testimony offered sufficient to induce the trial court to make findings of fact to the' effect that plaintiff had been elected secretary of the corporation, in a manner and by procedure conformable to the by-laws of the corporation and existing laws, which situation established prima facie plaintiff’s title to the position of secretary of the organization.
*525 The findings of the lower conrt, having the effect of a verdict, will not he set aside, if there is any evidence to sustain them. As expressed in our former opinion, we believe there was ample testimony offered to confirm the findings of the trial court. Admittedly, quo warranto, and not mandamus, is the proper remedy to try the disputed title to a corporate office, and if that were the purpose of this litigation, we would unhesitatingly declare plaintiff had mischosen his remedy; but as it clearly appears plaintiff desires to acquire possession of the insignia and effects of the office of secretary of the corporation, to which he was elected, and now holds, by a prima, facie title, we think mandamus will lie.
12. Counsel urge the election of plaintiff was irregular, for the reason that certain stock was voted by plaintiff which could not lawfully be done. This proposition is intimately blended with and is a part of the larger question, just discussed, that mandamus will not lie to search the records of an election, but that quo warranto must be so employed. After a careful review of the whole cause, we have reached the same conclusion as upon the former hearing, and therefore adherence will be given to the former opinion.
Affirmed: Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice Bakin concur.