160 Ind. 216 | Ind. | 1903
Appellees, three in number, insituted this action to restrain appellants from acting as members of the common council of the city of Greencastle until the determination of an action, by way of information, instituted in the name of the State, on the relation of the prosecuting attorney, in which the right of appellants so to act was drawn in question. On motion of appellees, a temporary injunction was granted. Appellants reserved an exception, and from said interlocutory decree they appeal to this court.
It is unnecessary to set out even a synopsis of the entire complaint. It discloses that on the 13th day of May, 1902, the common council of said city attempted to enact an ordinance providing, among other things, for the redistricting of said city for ward purposes, and that subsequently, but at the same meeting, the commpn council, by resolution, attempted to appoint appellants as members of such common council to fill two vacancies that said ordinance purported to create. The complaint sets out numerous matters that it is claimed were irregular in the enactment of said ordinance ' It is disclosed that appellants immediately qualified upon the making of said pretended appointment, and that at the time of the filing of the complaint in this case, September 1, 1902, they were acting as members of said common council, and had been since their pretended appointment. The complaint also discloses that appellees are, and had been since a date prior to said 13th day of May, 1902, among the duly elected, qualified, and acting
No question is made as to the power of the common council to adopt an ordinance providing for the redistricting of the city for ward purposes. See §3470 Burns 1901. The objections that are here made, in so far as they pertain to the ordinance, relate to certain matters of parliamentary law.
There is no question either, that is worthy of serious consideration, as to the power of the common council to fill a vacancy so created. §3484 Burns 1901; State v. Gorby, 122 Ind. 17. Under §3476 Burns 1901, it is clear that it is contemplated that each ward shall have two councilmen, and it would, therefore, follow, with a general power of appointment vested in the common council, in the absence of any restrictive provision, that whenever a new ward comes into existence the common council should fill the vacancies thereby created. Section 3471 Burns 1901 does not require a publication of notice prior to the adoption of the ordinance, and the operation of the ordinance is not postponed until after .the time fixed for publication has expired.
Assuming the power of the common council to enact such an ordinance and the power to fill the incidental vacancies that may be so created, and we are far within established doctrine in asserting that appellees should not have been granted an injunction. The authorities clearly establish that courts of equity will not interfere to determine questions concerning the appointment or election of public officers or their title to office. Markle v. Wright, 13 Ind.
Appellees’ counsel contend, however, that this is not a case of a contest; that the complaint shows that the offices have not been created that appellants respectively claim to hold. We realize that there ought to be some distinction made between cases where, the rights of third persons depend upon, the validity of the acts of a person in possession and exercising the functions of an office and cases where the right of the latter to hold the office is drawn in question. There are a number of authorities which uphold the right of a court of equity to interfere on behalf of an officer de facto, claiming to be the officer de jure, to prevent another, especially an intruder, from wresting the office from him without process of law. City of Huntington v. Cash, 149 Ind. 255; Parsons v. Durand, 150 Ind. 203; Braidy v. Theritt, 17 Kan. 468; Guillotte v. Poincy, 41 La. Ann. 333, 6 South. 507, 5 L. R. A. 403; State, ex rel., v. Superior Court, 17 Wash. 12, 48 Pac. 741, 61 Am. St. 893;
An examination of some of the cases last cited will be instructive in this connection. Braidy v. Theritt, supra, states that the officer d,e facto is the proper person to hold the office pending a contest therefor. It is said in Guillotte v. Poincy, supra, where the defendant was out of possession, that “The plaintiff was entitled to relief by injunction in order to preserve the status quo until the right shall be judicially determined, which is the extent to which the injunction should go.” In the case of State, ex rel., v. Superior Court, supra, it was affirmed that “One in possession of an office by virtue of a, certificate of election issued by the proper officer and regular upon its face is entitled to retain possession and perform the duties of the office without interference until such certificate is set aside in some appropriate procedure.” The following is an extract from the opinion in Palmer v. Foley, supra: “Jurisdiction ought not to be assumed to oust an officer from an office held under the color of title ‘until his right to such office has been settled in the mode prescribed by law.’ Walter B. Palmer received
We do not think that the case of Kerr v. Trego, 47 Pa. St. 292, that is relied on by counsel for appellees, affords them any real support. That was an extraordinary case, resting on an unusually broad grant of power. The case seems to belong in the class of cases we have just been considering. The general doctrines announced in the course of this opinion seem to have been held in Pennsylvania both before and since that decision. We can not consent to follow it, however,_ if it goes as far as counsel contend. New cases may illustrate or enlarge the operation of the principles on which courts of equity act, but the courts are not at liberty to depart from those principles. Story, Eq. Jurisp., §§10-20; State, ex rel., v. Cunningham, 83 Wis. 90, 53 N. W. 35, 35 Am. St. 27, 17 L. R. A. 145; High, Injunctions (3d ed.), §7. Appellees were not entitled to an injunction in their own right.
The further claim advanced on hehalf of appellees, that they were entitled to maintain an injunction on behalf of the public, is also destitute of merit. Some of the distinctively prerogative writs of the common law — as hateas corpus and mandamus — that issued originally on motion 'showing probable cause for invoking the extraordinary power of the crown to assist the party (3 Blackstone, Comm., 132), have become to a large extent writs of right. High, Extra. Leg. Rem., §43-1; Hamilton v. State, ex rel., 3 Ind. 452; Board, etc., v. State, ex rel., 86 Ind. 8; Union Pac. R. Co. v. Hall, 91 U. S. 343, 23 L. Ed. 428. On the other hand, while the writ of injunction has been used to a
We need not determine whether the bill of exceptions is in the record. If the complaint failed to state a cause of
Judgment reversed, with an instruction to the court below to dissolve the temporary injunction.