Town of Sumner v. Henderson

76 So. 829 | Miss. | 1917

Sykes, J.,

delivered the opinion of the court.

The appellees, complainants in this case, filed a bill in the chancery court of the second district of Tallahatchie county against the defendants, ashing that the defendants be enjoined from acting as aldermen and members of the board of school trustees. Without stating in detail the allegations of the bill, it is clear that the town of Sumner has two rival sets of claimants for the offices of alderman and members of the board of school trustees. The bill in this case, though claiming that the town of Sumner is a complainant, on its face shows that the mayor and two persons who claim to be aldermen have instituted this proceeding against three other acting aldermen who, with a fourth alderman not joined as either a complainant or a defendant, really comprise a majority of the acting board of mayor and aldermen. In other words the mayor and two claimants to the offices of alderman filed this bill individually, and in the name of the town of Sumner, against an equal number of acting aldermen of the town. The bill further snows that these three defendants who are acting as aldermen, in connection with another alderman, constitute a majority of, to say the least, the de facto governing body of the municipality, and are administering its governmental affairs. •

The bill further shows that the defendants, alleged members of the board of school trustees, are in charge of the school affairs, and are attempting to administer them. In short, the bill shows that tlie defendants in the case are exercising the duties of aldermen and members of the board of school trustees, respectively; that they are attempting to administer these duties by virtue of alleged illegal appointments to the offices' by the Governor. The bill upon its face though signed by the town of Sumner shows that it is an attempt by three members of the board to oust three other members from office. That these three other members, in • connection with the fourth member not sued, constitute a majority of the board who are acting, as the complainants' think, in violation of law. These facts being shown, we do not think the town of Sumner is a proper party complainant to the suit. This suit is an attempt by injunction to try the right and title to'the offices of these defendants who are exercising the duties of these offices. The proper remedy is by quo< warranto, not by injunction. This would be true, even though the town were a party complainant to the suit. The defendants in this case are in office, fulfilling the duties, and are, to say the least, de facto officers. This being true, the only remedy of complainants is by quo, warranto. “An injunction will not be granted to prevent a party from exercising a public office pending proceedings to determine his right thereto.” Moore v. Caldwell, Freem. Ch. 222. The rule is thus stated in Pomeroy’s Eq. Jur. vol. 5, section 333: “It is a principle of universal application that an injunction will not issue when its object is to try title to public office.”

Section 334, same authority: “For the same reason, an injunction will not issue at the suit of a member of the appointing body to .restrain a person alleged to have been illegally appointed; nor at the suit of a taxpayer or elector; nor at the suit of a local body or municipal corporation.”

The appointment of these defendants by the Governor, whether legal or illegal, and the performance by them of the duties constitute them de facto officers at least. Adams v. Bank, 75 Miss. 701, 23 So. 395.

The bill in this case also alleged fraud on the part of defendants. 'There was an answer denying fraud, and a demurrer, was then filed to the rest of the bill, which was sustained by the lower court, from which decree this appeal is prosecuted. For the reasons above indicated, we think the court below was correct in' sustaining the demurrer, and the decree of the lower court is affirmed.

Affirmed.