Arnold v. Henry

• Decision Date: 13 March 1900
• Citation: 55 S.W. 1089,155 Mo. 48
• Parties: ARNOLD et al., v. HENRY et al
• Court: Missouri Supreme Court

55 S.W. 1089

155 Mo. 48

ARNOLD et al., v. HENRY et al

Supreme Court of Missouri

March 13, 1900

Writ awarded.

Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, J. A. Reed, R. W. Quarles, Jos. S. Rust, H C. Ward and Elijah Robinson for relators.

(1) The question of eligibility can not be raised by injunction proceeding, because Washburn was in fact a de facto officer and even if he had not been eligible, which we do not concede, that question could not be raised in this proceeding. Mechem on Public Officers, sec. 318. (2) Washburn either is a de jure or de facto officer, and in either event his acts are valid so far as this proceeding is concerned and his eligibility to the office can not in this action be questioned. Mechem on Public Officers, sec. 318. (3) A court of equity may be restrained by prohibition and kept within the proper line of its jurisdiction, as well as a court of law. 135 Mo. 230. (4) An injunction should be refused where sought on the ground that the enforcement of a law will deprive parties of their right to exercise the functions of public offices which they hold. 1 Spelling on Extra. Relief sec. 692; 78 Ill. 237. (5) The law is that where the act sought to be restrained involves a question of right to exercise official authority, a court of equity will not interfere by injunction, and has no jurisdiction, it being a proper case for quo warranto proceedings. Brown v. Redding, 50 N.H. 336; 1 Spelling on Extra. Relief, sec. 696. One can not be enjoined from exercising the functions of an office. 21 S.W. 94; 2 Beech on Injun., sec. 1381; 51 Minn. 255; 28 Ark. 455; High on Injun. (3 Ed.), sec. 1312; 28 N.E. 818; 18 P. 165; 20 N.Y.S. 327; 36 Mo. 233.

Warner, Dean & McLeod and Gage, Ladd & Small for respondents.

(1) It is well settled that the writ of prohibition will not issue to prohibit an inferior court from proceeding to try a cause over which it has full jurisdiction. In re N. Y. etc., S. S. Co., 155 U.S. 523; State ex rel. v. Scarritt, 128 Mo. 332. (2) The court below had full jurisdiction to hear and determine the case of Harris v. Arnold et al. A court of equity has jurisdiction to grant an injunction at the instance of a party claiming and in possession of an office to restrain another party who claims to be entitled to that office from taking possession thereof by force and violence until the title can be settled by a proper proceeding at law. Such was the nature of the action brought in the court below, and such an action does not involve the title to the office. High on Injun., sec. 1315; Guillott v. Poinsey, 41 La. Ann. 333; Brady v. Sweetland, 13 Kan. 41; Brady v. Therritt, 17 Kan. 468; State v. Superior Court, 17 Wash. 12; 61 Am. St. Rep. 893; Powers v. Durand, 49 N.E. 1047; Huntington v. Gast, 48 N.E. 1025.

GANTT, C. J. Burgess, Brace, Robinson, Marshall and Valliant, JJ., concur. Judge Sherwood not having been present at the argument takes no part in the decision.

OPINION

In Banc.

Prohibition.

GANTT C. J. -- This is an original proceeding in this court to prevent the circuit court of Jackson county from taking further cognizance of a suit by defendant Harris in said court to enjoin H. Clay Arnold, J. H. Lipscomb and C. E. Washburn from interfering with said Harris's access to and use of the office of the Board of Election Commissioners of Kansas City, its vaults, safes, books, records, papers, ballot boxes, tally sheets, forms, and other property pertaining to the said office of election commissioner, and from interfering with or molesting said Harris in the discharge of the duties of election commissioner of said city, until a judicial determination of the rights of Charles E. Washburn to the said office can be heard. Said suit for injunction was commenced about the 24th day of August, 1899.

On application to Judge Henry, a temporary restraining order was granted enjoining said Arnold, Washburn and Lipscomb from interfering with or preventing said Harris from having access to the office, records, papers, etc., of the Board of Election Commissioners, and the same was made returnable August 25, 1899, at which time the hearing was continued until August 28, 1899, on which last mentioned day said defendants filed their motion in writing to dissolve said temporary injunction because said circuit court had no jurisdiction thereof. In the meantime said defendants therein made application to one of the judges of this court in vacation for a provisional writ of prohibition which was granted, and afterwards, upon issues framed, was heard at this term of this court.

The facts out of which this controversy arises are briefly these: On or about the day of September, 1895, Joseph Harris was appointed and duly qualified as a commissioner of elections for Kansas City, for a term of four years and until his successor should be duly appointed and qualified. Said appointment was made under an act of the General Assembly of this State, approved May 31, 1895, and as such amended March 31, 1897, March 23, 1897 and March 26, 1897.

Said Harris, together with H. Clay Arnold and J. H. Lipscomb, constituted the Board of Election Commissioners of said city, and as such board they had the custody of the registry books, poll books, tally sheets, ballots and ballot boxes, etc., and the keys to the office of said Board of Election Commissioners. On the 19th day of June, 1899, the General Assembly further amended the act creating said board whereby section 91 of the act of May 31, 1895, as amended in 1897, was repealed and in lieu thereof a new section enacted.

Under this last amendment the Governor on August 21, 1899, appointed said Arnold, Lipscomb and Washburn election commissioners, and they each took the oath and qualified as required by law, and afterwards took possession of the office and of its official property and appurtenances.

Mr. Harris, claiming that the appointment of Washburn was illegal and in defiance of the law creating said board, brought his suit to enjoin the board from interfering with his occupancy of said office until Washburn's title could be determined.

I. The contention of plaintiffs is that the bill for injunction while nominally to preserve property rights, is after all, in substance, an effort to try Washburn's title to the office of commissioner in an injunction proceeding, and that the circuit court as a court of chancery, has no such power. It must be noted in the beginning of this discussion, that the respondents concede that the law of 1899 is constitutional.

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