The opinion
MONTGOMERY, J.,
dissenting: This was an application for mandamus, commenced by summons and complaint to compel the defendants to restore the plaintiffs to the office of Commissioners of the County of Granville, from which office they had been ejected and removed by the defendants, who were also Commissioners of the County, elected at the general election of November, 1890. The plaintiffs had been received as commissioners by the defendants, and they had conjointly acted in the organization of the board, and in the transaction of other public business. At the time of their expulsion by the defendants, the plaintiffs were the appointees of his Honor, A. W. Graham, a Judge of the Superior Court, who in the appointment acted by virtue of the po^er contained in Section 5, Chapter 135, of the A.cts of 1895. The old writ of mcmdamus was not abolished by the provisions of the The Code of Civil Procedure, as was that of quo warranto. The act of 1871-72, Ch. 75, only requires that applications for mandamus should be commenced by summons and verified complaint. It is, hov <3ver, no longer regarded as an extraordinary remedy and as one of high prerogative, but has become to be a writ of right to be issued as ordinary process in any *246 case to which it is applicable. Haymore v. Commissioners, 85 N. C., 268 . So that whatever rights were formerly to be had under mandamus proeedings are still administered by the courts. It cannot be doubted that if the defendants really had misgivings concerning the legality of the appointment of the plaintiffs by Judge Graham, their remedy was by a proceeding in the' nature of quo war-ranto, under Sub-Section 1 of Section 607 of The Code. By that manner cf procedure the lawfulness of' the plaintiffs’ appointnent would have been tested in the courts in a regular and orderly manner; and, also, during the pen-dency of the action the acts of the board would have been good and valid, as the appointees, even if their title to the office should have been found to be bad, would have at least been commissioners defaeto. The conduct of the defendants in expelling the plaintiffs being wrongful, the plaintiffs nust have some legal redress, for where there is a wrong there must be a remedy And it is apparent that the nature of the proceeding, which the plaintiffs should resort to to secure their rights, is either mandamus or an action in the nature of quo warranto. Quo warranto cannot be the proper remedy, for that proceeding is applicable where there is a contest between two claimants to an office, and the title is to be tried, or where the title is to be tried by the Attorney General tor the State, or some private person against a usurper, under Sec. 60 f of the The Code, Sub-Sec. 1; and the pleadings here show that no successors have been elected or appointed to fill the vacancies caused by the plaintiffs’ expulsion. There is no other claimant to the office with whom they could test the title to the office.
It seems, -then, that mandamus was the proper action for the plaintiffs to have instituted upon the facts set out in their complaint. Indeed, it was admitted by defend *247 ant’s counsel in the argument here that the plaintiffs could not have brought an action in the nature of quo warranto, and that the only remedy they had w as in mandamus proceedings, and that the action, so far as the form of it is concerned, is properly brought. But the counsel insisted that, before a judgment for the restoration of the plaintiffs could be had, the plaintiffs had to show that their title to the office was a clear and full legal title, as upon an issue submitted to try that question. The plaintiffs insist that the title to the office is not to be tried, that they only seek to be restored to the position which they occupied before they were ejected by the wrongful act of the defendants, and that all they are required to show is a prima facie right to the office, which appears from the appointment of Judge Graham. This is the point in the case. The defendants, ol course, aver in their answer that the appointment of Judge Graham is invalid on account of certain alleged irregularities.
In support of the defendants’ position, we have been referred to the decisions of this court in Worthy v. Barrett, 63 N. C., 199 ; Doyle v. City of Raleigh, 89 N. C., 133 ; and Ellison v. City of Raleigh, Ibid., 125.
The controlling fact in Worthy v. Barrett, was not like any fact in the case before us. There, the petitioner was a sheriff elect, whose bond was refused, and who was denied induction into his office by the defendants, who were commissioners of the county, on the ground that he was personally disqualified by constitutional inhibition from holding any office in North Carolina. The court held that the matter being perfectly clear that the plaintiff could not hold the office, they would not do the vain thing of compelling the commissioners to put a man into an office who ought not to serve. The ground of this ruling was that it appeared clearly from the admissions in the *248 pleadings that tbe plaintiff was personally disqualified to bold tbe office; that be ought not to be allowed to fill it because of disabilities imposed upon bim by law. But it does not follow that the court would have so summarily disposed of that branch of tbe case if it had appeared that the plaintiff was not personally disqualified, and had been awarded tbe proper certificate of election. It is improbable that, if such bad been tbe fact, the court would have ordered a trial upon the issue whether or not tbe plaintiff bad been duly elected. His certificate of election, doubtless, would have been regarded as a prima, facie right and title to tbe office, and tbe defendants ordered to induct bim. 'ft itbout further comment on that case, we simply say that tbe facts there were very different from tbe facts here. In this case tbe plaintiffs have been installed into their offices, have acted conjointly with tbe defendants, and, by tbe admission of the defendants, in their answer, tbe plaintiffs were personally qualified to fill tbe offices to which they were appointed.
The facts in Doyle's Case, supra, were, that he was elected an alderman of tbe city of Raleigh, was inducted into the office, acted with tbe other aldermen and was ejected from the board on the ground that be was, under the Constitution, incompetent to bold tbe office. No successor w as appointed by tbe board to fill tbe vacancy caused by bis expulsion. Tbe court held that be sought bis appropriate remedy to be restored to his office in mandamus proceedings. In tbe case before us, the plaintiffs bad been appointed under tbe authority of law, bad been inducted, bad acted with tbe defendants as a board of commissioners; and were expelled from tbe councils of the board, and no successors have been appointed. If mandamus was a proper proceeding in Doyle’s case, certainly it is tbe proper remedy for the plaintiffs in this action Tbe court did not *249 decide in Doyle’s case that the plaintiff bad to prove a clear and full legal title to the office of alderman before he could be restored; it did not decide that the title to the office had to be tried before restoration could be ordered. The court did not even discuss that question It simply held that mandamus vas the proper remedy because the plaintiff had been elected, had been inducted into his office, had been rejected, and that the vacancy still existed at the time of the trial; that the place which the plaintiff held was not an office, and that he ought to be restored, “even if the aldermen had jurisdiction in the premises and had proceeded in a regular way to pass upon the question of competency.”
In Ellison's Case, supra, the plaintiff was a member of the board of aldermen of the city of Raleigh, duly-elected, and had attended three meetings with his associates. Pie was ejected, and' his successor was appointed and qualified. Mandamus was resorted to by the plaintiff, and this court held merely that the action of the board of aldermen was wrongful, but that the plaintiff could not be restored in mandamus proceedings for the reason that his successor bad been appointed under color of competent authority, and was a de facto officer, and that the title to the office was therefore in controversy between him and his successor. The matter was narrowed down to a contest between the plaintiff and his successor for the office of aider-man, and the title had to be tried by quo warranto. Nothing else was decided'in that case.
These decisions of our court are in harmony with some of the best text writers on mandamios and quo warranto. In High on Extraordinary Remedies, it is said that “in cases where relief has been sought to determine disputed questions of title to and possession of public offices, the courts have almost uniformly refused to lend their aid by man- *250 damns, since the remedy by information in the nature of a quo warranto is justly regarded as the most appropriate and efficacious remedy for testing the title to the office.” And the same author, in the same work, at Section 67, writes: “And mandamus is recognized as a peculiarly appropriate remedy to correct an improper amotion from a public office and to restore to the full enjoyment of his franchise a person who has been improperly deprived thereof.” In Dillon’s work on Municipal Corporations, Yol. 2, at Section 892, it is stated in substance that generally in this country, by adoption from the English law, where one is in the actual possession of an office under a claim by election or commission, and is performing the duties of' the office, mandamus is not the proper proceeding in which to try the validity of such election or commission to admit another, but that quo wmranto is the remedy. In the same section the author writes: “The certificate of election of an officer, or his commission coming from the proper source, is prima faoie evidence in favor of the holder, and in every proceeding except a direct one to try the title of such holder it is conclusive; but in quo wmranto the court will go behind the certificate or commission, and inquire into the validity of the election or appointment and decide the legal rights of the parties upon full investigation of the facts.”
Decisions can be found on both sides of the question, in rhe courts of the different States, as to whether the plaintiff in mandamus should be compelled to show more than a prima faoie case. Rut I am of the opinion that in cases where mandmius is the proper remedy, as it is in the case before us, the title to the office cannot be tried, and that when the claimant shows an appointment or certificate of election from the proper source the saméis prima faoie evidence in favor of the holder, and entitles him to be re *251 stored, to the office from which he was unlawfully removed. The counsel of the defendants, in their very excellent brief, asked this question: ‘ £Is it possible that, when one, asking to be put in an office, shows his appointment and it is apparent on the face of it that it is irregular, illegal and void, and founded on a proceeding which is patently illegal and without any warrant of law, the court must refuse all inquiry into the right and put such party into office, although it is apparent that they must put him out the next day? ” The answer to the question is that it does not state the point for decision. The question is, Have the plaintiffs shown a prima facie right to the office which they claim, and were they unlawfully ejected therefrom by the defendants? These questions w e have answered in the affirmative. The law will not permit a majority of the commissioners of a county to arbitrarily pass upon the rights of one or more of tbeir members to the office which they claim, and remove them without a hearing and without trial. Indeed, they had no jurisdiction over the matter upon which they acted.
The object of the defendants undoubtedly was to take a short cut to thwart the action of the Judge by ejecting summarily the plaintiffs who were his appointees, without waiting for the due process of the law. If such proceedings were tolerated, the law would soon be superseded by violence. Under the appointment of Judge Graham, the plaintiffs were de facto officers, if not officers de jure. (But upon this question we are not passing any judgment, nor do we intend to do so in this proceeding.) The defendants or any citizen of Granville county had the clear, legal right, under Sub-Section 1 of Section 607 of The Code, to institute a proceeding in the nature of quo warranto against the plaintiffs to have them removed from the office they were filling at the time of their expulsion,- if it was *252 thought that their appointment was invalid or unlawful. But, instead of following that course, the defendants resorted to a wrongful and unlawful method, and wrongfully and unlawfully removed the plaintiffs. I think the plaintiffs should be restored to their offices, and then they can take such oaths as they failed through inadvertence to take when they entered upon the discharge of their duties. I think there was no error in the ruling of his Honor in refusing to dismiss the action on the motion of the defendants.