OPINION
SEDGWICK, J.
In
April, 1904, there was held in the village of Gothenburg an
election of members of the board of trustees of the village.
At the close of the election, and before the votes had been
canvassed, one John Strahle, alleging that he was an elector
of the village of Gothenburg, began a proceeding in the
county court of Dawson county to contest the election of
Carroll, Weideranders and Ellingsworth, three of the
candidates at said election, each of whom had received, it is
conceded, a majority of the votes cast at the election for
the office of trustee. On the same day that he commenced this
contest in the county court, the said Strahle began an action
in the district court for Dawson county for the purpose of
enjoining the board of trustees of the village of Gothenburg
from canvassing the votes cast at the election, and in that
action he obtained from the county judge of Dawson county a
temporary order of injunction restraining the board of
trustees from canvassing the vote. Afterwards, his contest
proceedings having been tried in the county court, and having
resulted against him, and having been taken to the district
court, both actions were tried in the district court, and
determined against the contestant Strahle. He has brought
both actions to this court for review. The district court
having upon the final hearing dissolved the temporary
injunction restraining the board from canvassing the votes
fixed the amount of the supersedeas bond to be
given by the plaintiff therein to supersede the judgment of
the district court during the pendency of the action in this
court, which bond was given by the plaintiff and duly
approved, and the cause is now pending in this court.
Thereupon this action was brought to obtain a writ of
mandamus to compel the village board to proceed and canvass
the vote notwithstanding the injunction. The parties have
stipulated the facts upon the record, and the question is
whether the injunction was effectual to prevent the
canvassing of the votes.
In
Calvert v. State, 34 Neb. 616, 52 N.W. 687, the
plaintiff in error had been adjudged guilty of contempt in
violating an injunction order of the district court, and in
reversing that judgment the court by MAXWELL, C. J., said:
"The
question presented to this court is the power of a judge at
chambers, upon the issues presented, there being disputed
questions of fact, to make the order in question. In any case
where the court or judge has jurisdiction and grants an
injunction
during the pendency of a suit, the injunction while in force
must be obeyed. A court should exercise great care in
granting such relief, and only where it is clear the injury
to the plaintiff will be great or irreparable; but having
granted it the adverse party should move to dissolve or
modify and cannot disregard it with impunity. A court must
insist that its legitimate orders be obeyed. This is
necessary both for the protection of private rights and those
of the public. If the court or judge exceeds his
jurisdiction, however, his action in the premises is like
that of any other person who acts without authority. * * *
Suppose the owner of a farm, or one or more city lots, should
apply for an injunction to restrain the construction of a
railway across his land, and should set forth the same facts
as to his ownership and possession as the defendant has done
in this case, and the railway company should allege the same
facts as are stated in the plaintiff's petition, would
the court or judge on a preliminary hearing have authority to
tie the hands of the landowner and permit the
adverse party to divest him of his rights and destroy his
possession? The statement of the case carries with it a full
answer. The judge, in effect, has undertaken to dispose of
the merits of the case without a hearing. A temporary
injunction merely prevents action until a hearing can be had.
If it goes further, and divests a party of his possession or
rights in the property, it is simply void. People v.
Simonson, 10 Mich. 335; Port Huron & G. R. Co. v.
Judge, 31 Mich. 456; Salling v. Johnson, 25
Mich. 489; McCombs v. Merryhew, 40 Mich. 721;
Arnold v. Bright, 41 Mich. 207; Tawas & B. C. R.
Co. v. Judge, 44 Mich. 479, 7 N.W. 65. Judge Cooley, in
Arnold v. Bright, supra, says: 'The
court of chancery has no more power than any other to condemn
a man unheard, and to dispossess him of property prima
facie his, and hand over its enjoyment to another on an
ex parte claim to it. In several cases it has been
decided that possession of lands is not to be disturbed by
means of a preliminary injunction. Hemingway v.
Preston, Walk. Ch. (Mich.) 528; People v.
Simonson, 10 Mich. 335.'"
It is
said by Mr. High in his work on Injunctions, vol. 2 (4th
ed.), sec. 1425:
"While
it is thus seen that courts of equity exact the most implicit
obedience to the writ of injunction, and treat its wilful
violation as a most flagrant contempt of court, the doctrine
is to be understood with the qualification that the court has
jurisdiction over the subject matter in controversy. And if
the court has no jurisdiction over the matter involved, or if
it has exceeded its powers by granting an injunction in a
matter beyond its jurisdiction, its injunction will be
treated as absolutely void, and defendants cannot, in such
case, be punished for contempt for its alleged violation. For
example, when an injunction is issued against a board of
township officers to restrain them from holding an election
which they are authorized by law to hold, equity having no
jurisdiction to interfere in such case, there can be no
disobedience of the injunction and no attachment for
contempt, since the mandate of the court is
absolutely void. So where a court has exceeded its powers by
granting an injunction in a matter over which it has no
jurisdiction, as by enjoining a board of municipal officers
from canvassing the returns of an election, the court having
no power to hear or determine such controversies, its
injunction will be treated as absolutely void, and a
punishment inflicted for its violation will not be
upheld."
One of
the cases referred to by Mr. High in support of this doctrine
is Dickey v. Reed, 78 Ill. 261. In that action an
injunction had been granted restraining the common council of
the city of Chicago from canvassing the returns made to them
by the judges and clerks of election. The defendants were
advised by their c...
