Bedford Springs Co. v. McMeen
29 A. 99
Pa.
1894
Check Treatment

Opinion by

Mr. Justice Green,

While it is true that the bill in this case was brought to compel the delivery of the property of the company, yet the real controversy as set forth in the bill and answer is upon the validity of the election of the defendants as directors of the company. If they were lawfully elected, the plaintiff has no case and is not entitled to the property claimed. Their title to the office of directors is therefore the real question at issue. All the averments of the bill tend to this one subject. Another election of other persons is asserted to have been the only lawful election, and the election of the defendants is alleged to have been unlawful. Thus the title of the one set of directors *642or of the other forms the matter of contention, and the right to have possession of the property in question is only incidental to the right to the office. The appellees aver that the question of the title to the office cannot be tried by a proceeding in equity, but that the exclusive remedy is by a writ of quo warranto. We think this point is well taken. In Updegraff v. Crans, 47 Pa. 103, we held that a bill in equity for an injunction to restrain borough officers from entering upon official duties, under an alleged illegal appointment of town council, will not lie — that the remedy is at law by quo warranto. Thompson, J., delivering the opinion, said: “ The complainant below mistook the remedy for testing the rights of the several persons claiming to be borough officers under the appointment of the borough council on the 15th of June last. Quo warranto is the specific statutory remedy for such a case. . . . This specific remedy at law ousts the equitable jurisdiction of the case.”

In Commonwealth v. Graham, 64 Pa. 339, we held that quo warranto is the proper remedy against persons usurping the office of trustees of a chartered church. It was a proceeding to test the title of the whole board and turned upon the validity of their election.

In Gilroy’s Appeal, 100 Pa. 5, a bill in equity was filed for an injunction to restrain the defendants from exercising the office of school directors. We said: “ The practical controversy is over the title to the office of school director of the borough of Archbald. The bill alleges the title of the plaintiffs, and denies the title of the defendants, and prays for an injunction to restrain the latter from exercising the office, or performing the duties of school directors of said borough. ... We cannot conceive how the merits of the bill can be determined in the face of such an affidavit, without inquiring into the validity of the title claimed by the defendants to the office in question. But it is perfectly clear that such a question cannot be tried in such a proceeding. The statutory remedy is not only adequate but it is exclusive. 2 Purd. 1206-1209. The title to' this office is in dispute- and like all other cases of disputed right is subject to the rule that an injunction will not be graned until the question of right is settled at law. . . . The case of Kerr v. Trego, 11 Wr. 292, is not applicable to this either in its facts or in the principles which controlled it.”

*643The cases of Kisor’s Appeal, 62 Pa. 435, Roshi’s Appeal, 69 Pa. 462, and Henry v. Deitrich, 84 Pa. 286, cited by appellant, are in no sense analogous to the present. They involved questions of property which had become complicated by dissensions among the members of the organizations. Questions of election were not raised or decided. The same is true of Kerr v. Trego. The right to quell a disturbance in councils made by disorderly persons was the chief subject of contention. The subject of the validity of the election of the incoming members was not discussed or decided.

We tbink that the question in the present case was exclusively the validity of the election of the board of directors, and as to that the want of equity jurisdiction to determine the title has been too frequently decided to be disregarded now.

The judgment is affirmed and appeal dismissed at the cost of the appellants.