29 Colo. 277 | Colo. | 1902
delivered the opinion of the court.
In the district court of Lake county, John J. Quinn, claiming to be a member of the board of county commissioners of that county, under appointment by the governor to fill a vacancy which, under our statute, continued his term till the next general election and until the election and qualification of his successor, brought his action in equity against the other four members of the board and Warren F. Page, who also claimed title to the same office, to restrain the board from recognizing and seating Page as a member thereof in place of plaintiff, and to enjoin Page from attempting to act as one of its members by virtue of a certificate of election which he held from the proper canvassing board certifying that at the next general eleetion held after Quinn’s appointment Page had been duly elected as his successor; A temporary writ of injunction was granted without notice to the defendant, and a motion was made to dissolve it. Before the hearing upon that motion, plaintiff asked leave of court to file a supplemental complaint, which in substance averred that since the filing of the original complaint the defendant mem
Upon a hearing of the motion to dissolve the temporary writ, which was contemporaneous with a hearing of plaintiff’s application for leave to file the supplemental complaint, the court refused to dissolve the temporary writ, and, without previous notice to defendants, issued a temporary mandatory writ commanding the board to admit plaintiff to its membership and to allow him to participate in all its proceedings and receive the emoluments of his office, until the further order of the court in the premises.
The defendants thereupon filed a petition in this court, setting forth the facts above recited, for a writ of prohibition to restrain the district court from proceeding further in the action there pending. A rule to show cause was issued, and in response thereto the respondents in this proceeding have filed a demurrer to the petition on the ground that such facts do not entitle the plaintiff to the writ.
The mere statement of the case shows that the district court, in the character of action before it, was entirely without jurisdiction in what it has already done, and also lacks the power to decide the question which the plaintiff really seeks to have adjudicated. While plaintiff Quinn protests that he is not endeavoring to have the title to the office which he claims determined in that proceeding, yet in the very nature of things the district court could not take a step in the case without entering upon an investigation of that very question. That a court of equity has not jurisdiction to try a disputed title to a public office is too clear for argument. That determination can be made only in an action in the nature of quo warranto, or in an election contest, as prescribed by statute. What must the district court necessarily decide before it can grant even a temporary writ? Certainly, it must investigate and determine either as matter of fact or law, that at least a prima facie case of the right to the office is shown to be in the plaintiff. To this extent, therefore, there would be a decision that he had the better right to the office, and upon a final hearing, either upon a demurrer to the complaint, or upon a trial of the facts if the issue upon them is made, the court, before it can issue a permanent injunction, must
It is altogether clear, that the district court was also entirely without jurisdiction to issue the temporary mandatory injunction, because no notice to the defendant was given; and it is equally clear that, for the reasons already given, jurisdiction was lacking to grant either that or the temporary restraining order issued upon the filing of the original complaint.
The only authority which seems to be in favor of plaintiff’s contention is the case of Guillotte v Poincy, 5 L. R. A. 403. That is a Louisianna case which in some of its material facts may be distinguished from the case at bar, but if it is authority for plaintiff’s contention here, it stands alone, and we decline to follow it. It may be justified under the statutes and civil procedure existing in Louisiana, where the distinctions between law and equity and their respective remedies are not observed, but it is contrary to the
The rule to show cause is sustained, and the writ heretofore issued is made permanent
Writ allowea.