State ex rel. Buchholz v. Seehorn
| Decision Date | 09 May 1910 |
| Citation | 128 S.W. 240,143 Mo.App. 182 |
| Parties | STATE OF MISSOURI ex rel. WILLIAM BUCHHOLZ et al., Plaintiffs, v. THOMAS J. SEEHORN, Judge, Defendant |
| Court | Kansas Court of Appeals |
WRIT AWARDED.
John G Park, F. M. Hayward, Willard P. Hall for relators.
(1) A public office, and not a mere employment, is involved herein. The commissioner of street cleaning is an officer, and not a mere employee. State ex rel. v. May, 106 Mo. 488; K C. Charter, pp. 367-368. He is a municipal officer and not an officer "under the state" in the meaning of article 6, section 12 of the constitution. State v Ragsdale, 132 Mo. 210. (2) In the statement herein it is made to appear most clearly that the purpose of the equity suit was to establish the title of Collins to the office of commissioner of street cleaning, and that the relief prayed by Collins depended absolutely upon said title being established by him. This conclusion is sustained by the Supreme Court of this State. State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Withrow, 154 Mo. 397; Arnold v. Henry, 155 Mo. 48. (3) Judge Seehorn's court has no jurisdiction in an equity suit to try and determine title to said office. A court of equity has no such jurisdiction. State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Withrow, 154 Mo. 397; Arnold v Henry, 155 Mo. 48; In re Sawyer, 124 U.S. 200; Beebe v. Robinson, 52 Ala. 66; State ex rel. v. Judge, 48 La. Ann. 1501; Delahanty v. Warner, 75 Ill. 185; Heffran v. Mayor, 160 Ill. 550; 23 Ency. of Law, 351; 29 Cyc. 1416; 2 High on Inj. (3 Ed.), secs. 1312-1313; Marshall v. Board of Managers, 201 Ill. 9; Corscadden v. Haswell, 177 N.Y. 499; Howe v. Dunlap, 12 Okla. 467; White v. Berry, 171 U.S. 366. (4) Prohibition will lie to prevent a court of equity from considering and deciding any of said questions and rights. State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Withrow, 154 Mo. 397; Arnold v. Henry, 155 Mo. 48; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Riley, 127 Mo.App. 469.
Lowe & Shannon, Lowrance & Casey and Paul S. Conwell for respondent.
Original Proceeding: Prohibition.
JOHNSON, J.--
This is an original proceeding to obtain a writ of prohibition against the Honorable Thomas J. Seehorn, one of the judges of the circuit court of Jackson county, to prohibit said court from entertaining jurisdiction of an injunction suit instituted therein by Edward T. Collins against the relators. A rule to show cause was issued by one of the judges of this court and served on the defendant. At the return day, defendant appeared and filed his return. The cause is before us on the motion of relators for judgment on the petition and return.
The controversy is over the possession of the office of "commissioner of street cleaning" in Kansas City. The petition for a writ of injunction filed by Collins in the circuit court, April 20, 1910, discloses that Collins was lawfully appointed to the office April 15, 1910, by the board of public works; that immediately he took possession of the office and proceeded upon the discharge of the duties thereof; that on April 18th, a new board of public works was appointed by the mayor; that the next day the new board declared the office of commissioner of street cleaning vacant and appointed and commissioned W. E. Griffin to fill the vacancy; that Griffin is demanding possession of the office from plaintiff, who is in full possession thereof, and if not restrained, defendants will forcibly dispossess plaintiff and install Griffin and that the new board had no authority to remove plaintiff nor to appoint Griffin.
The foregoing is an epitome of the salient allegations of the petition for an injunction. Relators challenged the sufficiency of the petition to state facts constituting a cause of action in equity, but defendant ruled against them and was proceeding in the exercise of jurisdiction over the action when relators applied to this court for a writ of prohibition.
The question we are called on to decide is this: Has the incumbent of a public office who is in possession under an honest claim of right to hold the office a remedy by injunction to prevent another claimant, under color of right, from dispossessing him by force?
Admitting in his return that he had no jurisdiction to try the title to a municipal office in an equity suit, defendant disclaims any purpose of trying such issue, but asserts in justification of his course "that a de facto officer, in the actual and peaceable possession of a public office, may protect that possession against irregular interference or intrusion by the writ of injunction," and, "that any other rule of law would leave the actual occupant of a public office, no matter what his legal rights might be, without remedy except that of actual force or an ignominious surrender of his office and duties to any claimant who saw proper to use force or other irregular means to obtain such possession."
If the question were new in this State, we would say that where, as here, rival claimants of a public office are contending for possession of the office, and each is acting in good faith under color of right, the claimant in actual possession should be suffered to remain in office until ousted by the judgment of a court of competent jurisdiction and the rival claimant should be compelled to resort to his remedy at law for the enforcement of his claim. Resort to force and violence should not be tolerated and if necessary, equity should put forth a restraining hand to prevent the forcible ejection of a de facto officer from the office he holds under color of right. This doctrine is supported by respectable authority as well as by considerations of public safety and of public order and decency. It is thus stated in 2 High on Injunctions (3 Ed.), section 1315:
"While . . . courts of equity uniformly refuse to interfere by the exercise of their preventive jurisdiction to determine questions relating to the title to office, they frequently recognize and protect the possession of officers de facto, by refusing to interfere with their possession in behalf of adverse claimants, or, if necessary, by protecting such possession against the interference of such claimants."
But the prevailing rule in England and America, including this State, is that courts of equity must keep hands off in political contests over the title to or possession of public offices. The rule rests on two grounds: First, that a court of chancery is conversant only with matters of property and the maintenance of civil rights, and a public office is not property; and, second, it is thought it might lead to dangerous consequences if courts of chancery assumed jurisdiction in matters of a political nature. [State ex rel. v. Aloe, 152 Mo. l. c. 466, 54 S.W. 494.] "As early as the case of Tappan v. Gray (9 Paige 507) it was held by the chancellor that the court of chancery had no jurisdiction to enjoin at the suit of the incumbent of an office the intrusion of a hostile claimant illegally appointed to the office." [People ex rel. v. Howe, 177 N.Y. 499, 69 N.E. 1114.]
The decision in Tappan v. Gray was approved by the Supreme Court of the United States in In the Matter of Sawyer, 124 U.S. 200, 31 L.Ed. 402, 8 S.Ct. 482, and the doctrine of that case has been recognized and applied in the following cases decided in other jurisdictions: Beebe v. Robinson, 52 Ala. 66; Delahanty v. Warner, 75 Ill. 185; Heffran v. Mayor, 160 Ill. 550; Green v. Mills, 69 F. 852. In this State, the Supreme Court has given it unqualified approval in three cases: State ex rel. v. Aloe, supra; State ex rel. v. Withrow, 154 Mo. 397, 55 S.W. 460; Arnold v. Henry, 155 Mo. 48, 55 S.W. 1089. In none of these cases was the petitioner in the injunction suit the incumbent in office, but the Supreme Court does not restrict the doctrine under consideration to the facts of the particular case but adopts it in toto. It was held in the Aloe case:
"A chancery court has no jurisdiction by injunction or otherwise to bar the entrance to a public office of an officer appointed thereto by the governor, nor to determine his title thereto." And in Arnold v. Henry, the court say: This language will not admit of two interpretations. It can mean nothing else than that a political contest over either the title to or the possession of a public office is a matter beyond equitable cognizance.
The learned trial judge erred in entertaining jurisdiction of the injunction suit. His orders in that case are vacated and set aside and the writ of prohibition is awarded as prayed.
CONCUR BY: BROADDUS
I concur in the opinion of Judge JOHNSON for two reasons: First, because the contest is over the right to the office, which the Supreme Court of this State, in the cases referred to in the opinion, most emphatically determine is not subject to the intervention of a court of equity by injunction; and, second, because I believe the decisions contain a just and sound declaration of the law, not only as it is but as it should be, and are supported by the highest...
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