The opinion of the court was delivered by
Gordon, C. J.
Prior to the 23d day of August, 1898, tbe respondent was a member of the board of bealtb of tbe city of Spokane. On tbat day tbe mayor of tbe city transmitted to tbe council tbe following communication, viz.:
“ To tbe Honorable President and City Council:
“ Gentlemen—In accordance with Section 128 of tbe City Charter I hereby recommend tbe removal of Hr. E. L. Kimball as a member of tbe Board of Health, and respectfully ask tbat your Honorable Body sustain my recommendation. E. D. Olmsted, Mayor.”
*630By a vote of the council the recommendation of the mayor was adopted, and thereupon Dr. T. L. Catterson was appointed by the mayor to the position formerly held by the respondent, and this appointment was confirmed by the council. Dr. Catterson immediately went into possession of the office and proceeded to exercise the privileges and perform the duties pertaining thereto. In October the respondent applied to the superior court for an alternative writ of mandate, directed to the mayor and council of the city, requiring them to admit the relator to the office in question and recognize him as the legal incumbent thereof. The case was submitted below upon a demurrer to the alternative writ, which was overruled, and judgment pronounced in relator’s favor. The case comes here upon appeal of the mayor and council: Section 128 of the charter of the city of Spokane is as follows:
“ There shall be a board of health, which shall consist of three physicians, who are entitled to practice their profession under the laws of this state, two of whom shall be physicians in active practice, to be appointed by the mayor and confirmed by the city council, who shall have supervision of all matters appertaining to the sanitary condition of the city and its public institutions. Any member of said board of health may be removed upon recommendation of the mayor, by a majority vote of all the members of the city council, or may be removed by the vote of two-thirds of the members of the city council without recommendation of the mayor after charges have been preferred.”
It is conceded that no charges were preferred against the relator, and the first question to be considered is, Do the words “after charges have been preferred” refer to the entire paragraph relating to removals, or only to removals attempted by the city council without the recommendation of the mayor ? A literal construction of the section makes it evident that the qualification does not extend back or relate *631to removals made -upon the mayor’s recommendation, and we think there is no ambiguity or incongruity in the provision itself, which requires any other than a literal construction to prevail. Indeed, we think there is much reason why the provision should receive that construction. In the first place, power is given to the mayor to appoint the officer; and, while the power of confirmation is lodged in the council, it is beyond the power of the council to fill the office without the co-operation of the mayor. Having then the power of appointment in the first instance, there is nothing inconsistent in a provision authorizing the mayor to remove the officer with the consent of the council. On the other hand, where the council undertakes to remove the officer without the co-operation of the mayor, there is much reason for the provision which prohibits them from acting until charges have been preferred. He is not their physician. They have not appointed him. They are not proceeding with the consent or the recommendation of the mayor whose appointee he is. Tor these reasons, we think it not unreasonable that the section should provide for a different method of procedure where the removal is attempted by the council from that necessary to be employed where, as in the present instance, the removal is made upon the recommendation of the mayor. So considered, the procedure is in harmony with that prevailing in case of appointment by the governor to offices which, under the law, are permitted to be filled by appointments made by him. State ex rel. McReavy v. Burke, 8 Wash. 412 (36 Pac. 281); State ex rel. Howlett v. Cheetham, 19 Wash. 330 (53 Pac. 349).
In our opinion, the superior court erred in construing this provision of the city charter and a reversal must follow.
Another question arises in the case and, because of its importance, we deem it proper to consider it. It goes to *632the appropriateness of the remedy to which the plaintiff resorted in the present instance. It is urged by the appellants that mandamus is not the proper remedy where the title to an office is in controversy, and such was the holding of this court in Lynde v. Dibble, 19 Wash. 328 (53 Pac. 370). [Respondent does not controvert the proposition, but contends that it is not applicable to the present case; and asserts that mandamus is the proper remedy to restore one to an office from which he has been illegally removed, and there is much authority to be found in support of his position. But we think that the rule for which the respondent contends cannot be invoked where it does not clearly appear that the removal was illegal; and where the question of the legality is a disputed question, depending upon the construction of statutory provisions, mandamus is not the proper remedy. People ex rel. Wren v. Goetting, 133 N. Y. 569 (30 N. E. 968); People ex rel. Dolan v. Lane, 55 N. Y. 217; Ewing v. Turner, 2 Okl. 94 (35 Pac. 951).
In such a case it seems but reasonable that the law should require a form of procedure to be resorted to, which would require the incumbent of the office to be made a party and thereby enable him to be heard in his own behalf concerning his right to the office. Such a remedy is provided by chapter 2, §§ 5780 to 5787, inclusive, 2 Bal. Code (2 Hill’s Code, §§ 679-686), relating to information in the nature of quo warranto. Section 5780, supra, provides that an information may be filed “when any person shall usurp, intrude upon [into] or unlawfully hold or exercise any public office or franchise in this state, or any office in any corporation created by the authority of the state,” etc. The provisions of that chapter furnish a full, complete and adequate remedy, and, in our judgment, the only appropriate remedy afforded by the law in cases like the present one.
*633The judgment of the superior court is reversed, and the cause remanded with direction to dismiss the proceeding.
Dunbar and Reavis, JJ., concur.