Town of Sumner v. Henderson

Decision Date03 December 1917
Docket Number20136
Citation116 Miss. 64,76 So. 829
CourtMississippi Supreme Court
PartiesTOWN OF SUMNER ET AL. v. HENDERSON ET AL

Division A

APPEAL from the chancery court of Tallahatchie county, HON. C. L LOMAX, Special Chancellor.

Bill by the town of Sumner and others against R. A. Henderson and others. From a decree sustaining a demurrer to the bill complainant appeals.

The facts are fully stated in the opinion of the court.

Decree affirmed.

A. H Stephens and R. H. & J. H. Thompson, for appellant.

The demurrer in this case specifies as to its grounds; First, that there is no equity in the bill. Surely a municipality has an equitable right by injunction to restrain persons from acting in any manner which is calculated to and which will inevitably bring confusion in the municipal affairs and to protect its citizens, and property-owners from danger of being subject to loss. See 2 Dillon on Municipal Corporations (5 Edition), par. 517, p. 840; see copy of par. at end of this brief.

The equity of the bill rests upon the fact that unauthorized persons without the semblance of right are assuming to act as officers of the town. If we be not mistaken the authorities will justify us in stating that this case presents one wherein there is unquestionably an equitable right in the municipality.

The second ground of demurrer asserts that the complainants have an adequate and complete remedy at law, but it is so manifestly not well taken that it needs no argument. What suit at law could the town of Sumner institute against the defendants? No lawyer can answer the question and point out a legal remedy, and if a legal remedy can't be pointed out the second ground of demurrer falls to the ground.

The third ground of the demurrer erroneously assumes the recital of several distinct facts, all of which go to show the way in which the defendants' unauthorized conduct will damage the municipality, to be the gist of the bill of complaint. The municipality is seeking but one and a sole remedy, although its right thereto may be established by separate and independent facts, each and every one of the facts showing the necessity for the single relief sought.

Wells, May & Sanders, for appellee.

It was conceded at the hearing before the chancellor, that the position of school trustee is an office, but even if it should not be so conceded here, the controversy has been set at rest by our court in the case of Ellis v. Greaves, 82 Miss. 36, the syllabus of the case reading as follows:

"A trusteeship of a public school is an office within the meaning of Code 1892, section 3520, providing a remedy by quo warranto against persons unlawfully holding office.

It thus appears that the questions relating to the administration of the school district are identical with the questions relating to the administration of the municipality, and may be so treated.

The defendants, being acting officers, as alleged in the bill, and a remedy to test their right to hold these offices being provided and established, and this remedy being adequate and complete and to be administered in a court at law, has a court of chancery jurisdiction over this controversy.

The well settled rule, established by an unbroken chain of decisions, may be stated in substance as follows: "An injunction will not be granted to prevent a party from exercising a public office pending proceedings to determine his right thereto." Moore v. Caldwell, Freeman's Chancery Rep. 222; Pomeroy's Equity Jurisprudence, Vol. 5, pages 333, et seq.

In the case of Adams v. Bank, 75 Miss. 701, 23 So. 395, it is held that an officer de facto is one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority, but without actual right thereto.

If it may be conceded that the three aldermen defendants and alderman Whitten are not rightfully entitled to hold the offices, they are certainly de facto officers, it being alleged in the bill that they are in possession of the offices, and being further alleged in the bill what are the functions of these offices. In view of these allegations if they are exercising, the powers and discharging the duties, and in view of the general rule above stated, that an injunction will not lie at a suit of a municipal corporation, the claimant to an office, the state, an elector, a tax payer, or any other person, to test the right or title to an office, then the demurrer which forms the basis of the motion to dissolve the injunction is well taken.

Since the bill alleges, first, that the three aldermen defendants and alderman Whitten hold office under color of title by virtue of commissions held by them for these offices and since the bill alleges that the affairs of the town are being conducted by them, and since the only ground upon which any relief is sought or could be asked, is to test the title to these offices, it seems obvious to us that the only recourse of the appellants herein, was to test the right or title to these offices by quo warranto Sec. 4017, et seq., Mississippi Code 1906; 29 Cyc. page 1416.

For a full, complete and comprehensive discussion of the entire subject, see monographic note. Fletcher v. Tuttle, 42 Am. St. Rep. 236, 237; Hagner v. Heyverger, 7 Watts & S. 104, 42 Am. Dec. 220; Burke v. Leland, 51 Minn. 355; Cochran v. McCleary, 22 Iowa 75; Markle v. Wright, 13 Ind. 548; Kilpatrick v. Smith, 77 Va. 347; Neiser v. Thomas, 99 Mo. 224; Neeland v. State, 39 Kan. 154; Guillette v. Poincy, 41 La. Ann. 333; Prince v. City of Boston, 148 Mass. 285; Neeland v. State, 39 Kan. 154; Detroit v. Board of Public Works, 23 Mich. 546; Board of County Commrs, v. Board of School Commrs., 77 Md. 283; Neiser v. Thomas, 99 Mo. 224; Huels v. Hahn, 75 Wis. 468; Foster v. Moore, 32 Kan. 483; McDonald v. Rehrer, 22 Fla. 198; Markle v. Wright, 13 Ind. 548; Burke v. Leland, 51 Minn. 355; Hagner v. Heyberger, 7 Watts & S. 104, 42 Am. Dec. 220; Jones v. Commissioners of Granville, 77 N.C. 280; Kerr v. Trego, 47 Pa. St. 292; Guillette v. Poincy, 41 La. Ann. 333; Remmelin v. Mosby, 47 Ohio St. 570; Armije v. Baca, 3 N.M. 294; State v. Mayor of Kearney, 28 Neb. 103; Remmelin v. Mosby, 47 Ohio St. 570, Colton v. Price, 50 Ala. 424; Stone v. Wetmore, 42 Ga. 601; Delahanty v. Warner, 75 Ill. 185, 20 Am. Rep. 237; Sherman v. Clark, 4 Nev. 138, 97 Am. Dec. 516."

For other authorities see Note 70, page 1416, 29 Cyc, including the case from our court, Moore v. Caldwell, Freeman's Chancery Rep. 222.

We deem it unnecessary to protract this discussion or to extend a vain parade of authorities holding all one way.

OPINION

SYKES, J.

The appellees, complainants in this case, filed a bill in the chancery court of the second district of Tallahatchie county against the defendants, asking that the defendants be enjoined from acting as aldermen and members of the board of school trustees. Without stating in detail the allegations of the bill, it is clear...

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9 cases
  • Barnes v. McLeod
    • United States
    • Mississippi Supreme Court
    • April 11, 1932
    ...the doctrine that a court of equity has no jurisdiction to interfere with or control the holding, of an election. In Town of Sumner v. Henderson, 116 Miss. 64, 76 So. 829, bill for injunction was filed in the chancery court seeking to enjoin the defendants from acting as aldermen and member......
  • Yates v. Summers
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    • November 30, 1936
    ... ... is vested in the circuit court ... Sections ... 3053 and 3054, Code of 1930; Town of Sumner v ... Henderson, 116 Miss. 64, 76 So. 829 ... Answering ... inquiry (b), ... ...
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    • United States
    • Mississippi Supreme Court
    • May 22, 1939
    ...that of who received the greatest number of legal votes. May v. Young, 164 Miss. 35; Weisinger v. McGehee, 160 Miss. 424; Town of Sumner v. Henderson, 116 Miss. 64. was entitled to be inducted into office and the court below was in error in the first instance in issuing the preliminary rest......
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    • United States
    • Mississippi Supreme Court
    • May 14, 1928
    ... ... 876, 44 So. 769; ... Power, Sec. of State, v. Ratliff, 112 Miss. 88, 72 ... So. 864; Town of Sumner v. Henderson, 116 Miss. 64, ... 76 So. 829; Donald v. Stauffer, 140 Miss. 752, 106 ... ...
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