Roberts v. Kartzke

• Citation: 18 Idaho 552,111 P. 1
• Parties: C. E. B. ROBERTS et al., Appellants, v. PAUL R. KARTZKE et al., Respondents
• Decision Date: 22 September 1910
• Court: United States State Supreme Court of Idaho

111 P. 1

18 Idaho 552

C. E. B. ROBERTS et al., Appellants, v. PAUL R. KARTZKE et al., Respondents

Supreme Court of Idaho

September 22, 1910

PRIMARY ELECTION-CANVASSING BOARD-INJUNCTION-DISCRETION OF COURT-RESTRAINING ACT ALREADY DONE-ORDER DENYING INJUNCTION-APPEAL FROM.

(Syllabus by the court.)

1. Under the provisions of sec. 4287, Rev. Codes, an injunction is a writ or order requiring a person to refrain from doing a particular act.

2. Where an appeal is taken from an order denying an application for a temporary restraining order, made upon the complaint alone, without notice to the adverse party, to restrain a canvassing board from canvassing the vote of a certain precinct in a county, and a motion is made to dismiss the appeal based upon the affidavit of the clerk of the canvassing board, showing that such board had canvassed and certified the abstract of votes of such county and precinct prior to the taking of the appeal, the motion will be granted and the appeal dismissed.

3. The granting of an injunction is a matter of judicial discretion and the granting of a preliminary restraining order ex parte rests still more largely in the discretion of the court or judge.

4. The judge or court should not grant a temporary restraining order upon the verified complaint alone in an action of great public importance where the party to be affected thereby can be readily notified, except in case of extreme emergency, as a hasty and improvident granting of temporary injunctions without notice, is not in accord with the fair and orderly administration of justice.

5. An appeal from an order denying an application for a temporary restraining order does not operate as a supersedeas of the order appealed from, and at the same time in effect grant the restraining order pending the appeal.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. E. A. Walters, Judge.

Action to enjoin the canvassing board from canvassing and certifying an abstract of the vote in Hillsdale precinct, Lincoln county. Application denied. Affirmed.

Appeal dismissed and costs awarded in favor of respondents.

W. G Bissell, W. T. Stafford, T. E. Bennett, Sutphen & Sutphen, R R. Cook, D. W. Zent, and E. R. Dampier, for Appellants.

This proceeding was not an application for injunction without notice, but was an application for a temporary injunction merely, and that before granting the injunction a hearing might be had at a time and place designated where each party should have ample opportunity to be heard.

Courts of equity may restrain boards of commissioners from canvassing and counting the result of elections held without authority of law. (State v. Eggleston, 34 Kan. 714, 10 P. 3; Gossard v. Vaught, 10 Kan. 162; State v. Marion County Commr., 21 Kan. 437; Bradley v. Canvassers, 154 Mich. 274, 117 N.W. 649; People v. Tool, 35 Colo. 225, 117 Am. St. 198, 86 P. 224, 6 L. R. A., N. S., 822.)

Appellant contends that while the statute fails to provide the remedy, that there is a remedy; that the court is authorized under the state constitution to read into the law the mandatory and self-enacting provision of sec. 18, art. 1 of the Bill of Rights, and grant the injunction asked for in the court below, by reversing and remanding the order with direction to the lower court that the temporary injunction be issued, a time and place fixed for the hearing of the cause as prayed for in appellant's original complaint and application.

Frank T. Disney, County Attorney, Paul S. Haddock, J. R. Bothwell, Harlan D. Heist, and Victor O. Johnson, for Respondents.

An injunction will not issue to restrain a commission of an act already performed. (Wilson v. City of Boise, 7 Idaho 69, 60 P. 84; 2 High on Injunctions, sec. 1701a; Gallaher v. Schneider, 110 Ga. 322, 35 S.E. 321; Ambos v. Savannah, T. & I. O. H. Ry., 113 Ga. 1012, 39 S.E. 477; McKinney v. County Commrs. (Fla.), 3 So. 887; Delger v. Johnson, 44 Cal. 182; People v. Clark, 70 N.Y. 518; People v. Common Council, 82 N.Y. 575; In re Manning, 139 N.Y. 446, 34 N.E. 931.)

The granting of any injunction is largely a matter of judicial discretion. The granting of a preliminary injunction rests still more largely in the discretion of the court. (22 Cyc. 749.)

"The granting of a preliminary injunction resting in the sound discretion of the court, the appellate court will not disturb the same where there is no abuse of discretion." (Washington & Idaho Ry. Co. v. Coeur d'Alene Ry. & Nav. Co., 2 Idaho 439, 17 P. 142; Shields v. Johnson, 10 Idaho 454, 79 P. 394; Weber v. Della Mt. Min. Co., 11 Idaho 265, 81 P. 931.)

"A court or judge should never grant a temporary injunction in an action involving large pecuniary interests, or other important matters, without notice, where the party to be affected thereby can be readily notified, except in case of extreme emergency." (Atchison etc. Co. v. Fletcher, 35 Kan. 236, 10 P. 596; 10 Am. Digest (Dec. ed.), sec. 143, subd. h; McGregor v. Case, 80 Minn. 214, 83 N.W. 140.)

SULLIVAN, C. J. AILSHIE, J., Concurring.

OPINION

SULLIVAN, C. J.

This is an appeal from an order denying an application for a temporary injunction pendente lite. The action was brought to restrain the board of county commissioners of Lincoln county, acting as a canvassing board, from canvassing the votes cast in Hillsdale precinct of said county at the primary election held on August 30, 1910.

The principal allegation on which the action is based is to the effect that the voting place in said precinct, as designated by the board of county commissioners, was at the schoolhouse in School District No. 34, and that the election was held at the schoolhouse in School District No. 37, eight and one-half miles distant from the schoolhouse in said District No. 34, and counsel contend for that reason the vote cast in said precinct was absolutely void and that the board of canvassers had no authority in law to count and certify the same under the provisions of sec. 448, Rev. Codes, or sec. 37 of the primary election law.

The application for the writ was made without notice, upon an ex parte application. The judge denied said application and the order denying the same is assigned as error.

When the case was reached for hearing in this court, respondents moved to dismiss the appeal on the ground that the act of the board of canvassers sought to be enjoined had been done and performed prior to the filing or service of any notice of appeal from the order denying said application.

In support of said motion, there was presented the affidavit of the clerk of the board of said county commissioners, to the effect that said board completed the canvass of all of the votes cast in said county and in said Hillsdale precinct, and had completed the abstracts thereof on the 8th day of September, 1910, and had certified them to the Secretary of State, which abstracts included the votes from said Hillsdale precinct as well as all other precincts in said county, and that said abstracts were on file in the proper office and that said canvassing board adjourned on said date sine die; that no notice of the appeal was served upon the clerk of said board until 1:35 P. M. on the 9th day of September, 1910, and after said abstracts had been certified and the canvassing board had adjourned sine die.

An injunction is defined by sec. 4287, Rev. Codes, as follows: "An injunction is a writ or order requiring a person to refrain from a particular act." In Wilson v. Boise City, 7 Idaho 69, 60 P. 84, this court held that a writ of injunction would not be issued to restrain an act already done. In the case at bar the judge denied the application and no stay of proceedings was had pending the appeal.

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