| N.C. | Jan 5, 1871
It is provided (C.C.P., sec. 366,) "an action may be brought by the Attorney General in the name of the people of the State," etc., "when any person shall usurp, intrude into, or unlawfully hold or exercise any public office" etc. Sec. 369, "whenever such action shall be brought against a person for usurping an office, the Attorney General may also set forth the name of the person rightfully entitled to the office, and in such case upon proof by affidavit, that the defendant has received fees and emoluments belonging to the office, an order may be granted by a Judge of the Supreme Court, for the arrest of the defendant, and holding him to bail," etc.
The case made by the pleadings falls within the words and meanings of these two sections. The plaintiff alleges that the defendant has usurped the office of tax collector, and has unlawfully received the fees *93 and emoluments of the office. The defendant claims to be entitled to the office, and to the fees and emoluments thereof. (121)
The action is not instituted under this provision, but under sec. 189, C.C.P. We are of opinion the action as instituted cannot be maintained.
It is provided, (sec. 189,) "when it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief or any part thereof consists in restraining the commission, or continuance of some act, which would during the litigation, produce injury to the plaintiff — or when during the litigation it shall appear that the defendant is doing some act in violation of plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, temporary injunction may be granted to restrain such act."
We have seen that our case is covered by the provisions of secs. 366 and 369. The question is, does sec. 189 embrace the case? It is not easy to conceive a reason for embracing a case under both of these provisions so as to make the remedy cumulative, and give to the plaintiff an election to proceed in the one mode or the other.
We are of opinion that sec. 189 does not apply to cases of the usurpation of a public office, but is confined to cases where some private right is a subject of controversy, and the act sought to be restrained would produce injury to the alleged right of the plaintiff during the litigation. In such cases the appropriate remedy is a temporary injunction to prevent the commission or continuance of the act, for no one is affected by the injunction, save the parties to the action.
But when the subject of controversy is the right to a public office, an injunction to prevent the exercise of the office would produce general inconvenience; for instance, an injunction against one who it is alleged, has usurped the office of the Clerk of a Court, forbidding him to discharge the duties of the office, would stop all judicial proceedings and the public would be made to suffer by this mode (122) of contesting the right to the office, and to the fees and emoluments. Hence, in this, and the like cases, the appropriate remedy is not an injunction, but an order, holding the defendant to bail as a security for the fees and emoluments, if it turns out that he has usurped the office, and wrongfully received the fees and emoluments, leaving him until the right can be adjudicated to, go on in the discharge of the duties, so that the public service may have no detriment from the contest in regard to the right to the office, this objection is fatal.
The Act of 1865, chap. 32, has no bearing on the case. In Brodnax v.Groom,
The judgment in the Court below is reversed, and this Court proceeding to give such judgment as ought to be rendered; it is adjudged that the action be dismissed, and the defendant go without day and recover his cost.
Per curiam.
Judgment reversed.
Cited: People v. Heaton,
(123)