Rhodes v. Driver

• Decision Date: 02 November 1901
• Citation: 65 S.W. 106,69 Ark. 606
• Parties: RHODES v. DRIVER
• Court: Arkansas Supreme Court

65 S.W. 106

69 Ark. 606

RHODES v. DRIVER

Supreme Court of Arkansas

November 2, 1901

Appeal from Mississippi Chancery Court, EDWARD D. ROBERTSON, Judge.

Decree affirmed.

Rose & Coleman, for appellant.

The judgment of the county court established Rhodes' election, and he was entitled to possession pending appeal. 29 Ark. 85; Sand. & H. Dig., §§ 2699-2701; 17 Minn 90; 63 Ia. 711; S. C. 17 N.W. 433; 17 Ark. 407; 38 Tex. 70. The judgment of the county court was self-executing, and eo instanti divested appellee of all official authority, and removed him from office. 7 How. Pr. 282; 6 Abb. Pr. 222; 80 N.Y. 185; 64 Ind. 493; 59 How. Pr. 106; 40 Ga. 164; 98 Mich 218; High, Extr. Leg. Rem, § 756; 128 Mo. 497; 112 Kan 204; Mechem, Pub. Off. § 497. It had the further effect of investing appellant with the title to and the possession of the office. 15 Wash. 346; 63 Ia. 715; 6 Abb. Pr. 222; 80 N.Y. 185; 98 Mich. 218; 17 Minn. 296; 121 N. Car. 480. The judgment of the county court could not be superseded, so far as the possession of the office is concerned. Cf. Sand. & H Dig., § 1044. As a supersedeas affects only the process issuable upon a judgment, but leaves the judgment in full force and effect, it can not affect a self-executing judgment of ouster or removal. 20 Enc. Pl. & Pr. 1244; 126 Cal. 183; Ell. App. Proc. § 392; 98 Mich. 218; 19 Neb. 444; 28 Neb. 103; 44 N.W. 90; 64 Ind. 493; 15 Wash. 346; 63 Ia. 715; 96 Mo. 56; 14 Ga. 162; 44 Ark. 178; 52 Ark. 340; 37 Ark. 318. Chancery will not use injunction as a means of trying title to public office, but will leave the claimant to his remedies at law. 2 High, Inj. § 1312; 52 Ala. 66; 9 Pa.Ch. 509; 7 Hill, 259; 100 Pa.St. 5; 57 Miss. 437; 22 Fla. 198; 47 Pa.St. 103; Mechem, Pub. Off. § 994; 10 Am. & Eng. Enc. Law, 818; 5 Abb. Pr. 171; 171 U.S. 366; 52 Ala. 66. Where one claimant has already been adjudged to be entitled to an office, chancery will not retry his title or entertain injunction proceedings to prevent his taking possession of the office. 52 Ala. 66; 28 Neb. 103; S. C. 44 N.W. 90. Chancery has no jurisdiction in such matters. 43 Ark. 62; 29 Ark. 174; 124 U.S. 210. The injunction issued in this case is a nullity. 43 Ark. 62; 28 Neb. 103; 78 Ill. 261; 57 Miss. 437. As the allegations of the bill show that appellee is without title or authority, the bill should have been dismissed for want of equity. 17 Enc. Pl. & Pr. 159; 52 Ala. 491; 62 Ala. 596; 44 Ga. 501; 30 Fla. 492; 35 Fla. 2.

Norton & Prewett, for appellee.

The constitution gives a right of appeal in such a ease as this "on the same terms and conditions on which appeals may be granted to the circuit court in other cases." Const. (1874) art. 7, § 52. Appeals, by the statute, are grantable "as a matter of right from all final orders and judgments of the county court * * * with or without supersedeas." Sand. & H. Dig., § 1264. Injunction will lie to protect the actual incumbent of an office in his possession, pending a contest as to who is entitled, 2 High, Inj. § 1315; 5 Am. & Eng. Dec. Eq. 527; S. C. 150 Ind. 203; S. C. 49 N.E. 1047; 5 Am. & Eng. Dec. Eq. 549; 26 N.E. 717; 48 P. 741.

W. J. Driver and L. P. Perry, also for appellee.

The chancery court had jurisdiction. High, Inj. § 1315; 41 La.Ann. 333; 48 P. 741; 79 N.W. 668; Beach, Inj. § 1380; 6 So. 507; 8 So. 880; 49 N.E. 1047; 48 N.E. 1025; 13 Kan. 41. Appellee is a de facto officer. 5 Wait's Actions & Defenses, 7; 15 Mass. 180; 56 Pa. 436; 25 Ohio 588; 17 Kan. 468; 28 Kan. 286; 27 Minn. 292. The judgment of the county court may be superseded, so far as the possession of the office is concerned. 62 Conn. 478; 58 P. 813; 112 U.S. 204; 17 S.W. 433; 22 How. 174.

OPINION

BATTLE, J.

This action was instituted by Charles S. Driver against J. W. Rhodes, in the chancery court of Mississippi county, to enjoin and restrain the defendant from exercising the functions of the office of circuit clerk of that county. The plaintiff alleged in his complaint, substantially, as follows:

"The petitioner, C. S. Driver, was duly elected clerk of the circuit court of Mississippi county at the general election held on the 3d day of September, 1900; that he was duly commissioned, qualified, and is now acting as such clerk; that J. W. Rhodes contested his election before the county court of said county, and that court, on the 24th of October, 1900, rendered a judgment declaring that the said Rhodes was duly elected to said office, and that the petitioner was not elected; that petitioner appealed to the circuit court, and filed a supersedeas bond; that the circuit court found in favor of the petitioner, and Rhodes appealed to the supreme court, which latter court reversed the judgment of the circuit court, and remanded the cause for a new trial, and the case is still pending and undetermined in the circuit court; and that the petitioner is in possession of the records and paraphernalia, and is discharging the duties, of said office. That on the 18th day of July, 1901, the governor of the state of Arkansas issued to Rhodes his commission as circuit clerk of said county, and issued and caused to be published a proclamation revoking and annulling the commission theretofore issued to the petitioner; that Rhodes, after qualifying under said commission, demanded the possession of the office, which the petitioner refused to deliver; that he is occupying an office in the court house of said county, and is holding himself out to the public as circuit clerk; that he is receiving deeds and other instruments of record, and is exercising the functions of a circuit clerk, to the irreparable loss and injury of the petitioner and the public, and that there is no adequate remedy at law. Prayer that Rhodes be restrained from acting as circuit clerk of Mississippi county, and from interfering with the exercise of the functions of said office by the petitioner until the final determination of the contest proceedings."

Rhodes demurred to the petition on two grounds: First, because it did not state facts sufficient to constitute a cause of action; second, because it did not state a cause of action within the jurisdiction of a court of chancery. The demurrer was overruled, the defendant refused to answer or plead further, and a final degree was rendered in accordance with the prayer of the bill. Rhodes appealed.

Was appellee entitled to the injunction? Section 24 of article 19 of the constitution of this state says: "The general assembly shall provide by law the mode of contesting elections in cases not specifically provided for in this constitution." In obedience to this section of the constitution, the legislature passed an act providing that the contest of the election of any supreme judge or commissioner of state lands shall be before the circuit court of Pulaski county; and that the contest of the election of any circuit judge, prosecuting attorney, chancellor, or judge of the county and probate court shall be before the circuit court of the county where the defendant or contestee resides, or the county where the contestant resides and the contestee may be found. The act further provides that all actions or proceedings for such contests shall be by complaint filed in the circuit court as in other actions at law, in which the contestant shall plainly and fully set forth the grounds upon which the contest is founded; and provides that, "if the contestant shall succeed in his action, he shall not only have a judgment of ouster, but for damages, not exceeding the salary and fees of the office during the time he was excluded therefrom, with costs of suit; provided, either party shall have the right of appeal, with or without supersedeas, as in other cases at law." Sand. & H. Dig., §§ 2693, 2695, 2696.

This act also provides that, "when the election of any clerk of the circuit court, sheriff, coroner, county surveyor, county treasurer, county assessor, justice of the peace, constable, * * * shall be contested, it shall be before the county court, and the person contesting any such election shall give the opposite party notice in writing ten days before the term of the court at which such election shall be contested, specifying the grounds on which he intends to rely, and if any objections be made to the qualifications of voters, the names of such voters, with the objections, shall be stated in the notice, and the parties shall be allowed process for witnesses." Id. § 2697.

In the latter class of contests, the contests before the county court, the act says:

In the latter class of contests, the contests before the county court, the act says:

"Sec. 2699. If the court shall be of the opinion that the person proclaimed elected is not duly elected, and the person contesting is elected, an order shall be entered to that effect, and a copy thereof shall forthwith be transmitted to the governor, who shall commission the person declared duly elected by such order."

"Sec. 2700. If the person proclaimed duly elected shall have been commissioned previous to making the order annulling his election, it shall be the duty of the governor to cause such person to be notified that his commission is revoked." Sand. & H. Dig.

In both classes of contests the courts derive their jurisdiction from the act, the constitution having expressly authorized the general assembly to provide by law the mode of contesting such elections, with the express limitation "that in all cases of contest for any county, township, or municipal office, an appeal shall lie, at the instance of the party aggrieved, from any inferior board, council or tribunal to the circuit court." (Sec. 24, art. 19, and sec. 52, art 7.) In defining the jurisdiction of the two courts the act authorized the circuit court, in the event the contestant succeeded,...