Yates v. Summers

• Decision Date: 30 November 1936
• Docket Number: 32516
• Citation: 177 Miss. 252,170 So. 827
• Court: Mississippi Supreme Court
• Parties: YATES v. SUMMERS

170 So. 827

177 Miss. 252

YATES v. SUMMERS

No. 32516

Supreme Court of Mississippi

November 30, 1936

Division A

1 OFFICERS.

Equity court held without, jurisdiction to try by injunction right to office of county supervisor of either hold-over officer or of. newly elected officer who had a certificate of election regular on its face, and commission therefor, and who had duly qualified (Code 1930, sees. 196, 2881, 3053 et seq.).

2 OFFIOEBS.

Generally, injunction will not be granted to prevent party from exercising public office pending proceeding to determine his right thereto, but injunction will be granted at instance of incumbent to restrain claimant from interfering with office until he has established his claim to office in direct proceeding to try title.

3. OFFICERS.

Prima facie right of officer armed with election by people, certificate of his election, regular on its face, and commission therefor, after due qualification, is superior to rights of one claiming to hold over into new term on ground of disqualification of" newly elected officer, even though it may finally be determined in a contest that the newly elected officer has not been elected, or is ineligible to hold office (Code 1930, sec. 196).

4. OFFICERS.

Newly elected member of board of supervisors did not waive claim to office, as against incumbent holding over on ground that newly elected member was ineligible, by accepting appointment from governor after injunctive writ had been served (Code 1930, sees. 196, 2881).

5. COSTS.

Newly elected member of board of supervisors establishing prima facie right, as against hold-over claimant, held entitled to one hundred fifty dollars for services of attorneys in Supreme Court in preventing or resisting efforts of hold-over claimant to have reinstated in Supreme Court injunction dissolved in lower court; the amount allowed being one-half of reasonable fee allowed by lower court.

HON. R. E. JACKSON, Chancellor.

APPEAL from the chancery court of Bolivar county, Hon. R. E. JACKSON, Chancellor.

Proceeding by J. W. Yates against A. G. Summers. From an adverse decree, the plaintiff appeals. Affirmed.

Affirmed.

Roberts & Smith, of Cleveland, for appellant.

By the allegations of the bill of complaint, J. W. Yates showed a continuing prima facie right to occupy the office as against his adverse claimant. This statement is based on the allegations of the bill; first, his possession of the office and his right under the law to hold until his successor is duly qualified, and second, that the said A. G. Summers, the claimant, could not qualify, because he was not a resident freeholder of the district with real estate of the value of three hundred dollars.

The demurrer incorporated in the answer challenged the jurisdiction of the chancery court on the ground that the bill on its face shows that it is an attempt to determine the right of title to public office, alleging that complainant's sole remedy is by quo warranto which can only be instituted in a court of law.

The demurrer admitted all material facts well pleaded in the bill and which would be admissible in evidence, and the legal presumptions arising from the facts well pleaded in the bill.

Griffith's Chancery Practice, sec. 288.

The only question of right that can be judged in this cause is the right pleaded in the bills of complaint filed in this proceeding, which we submit constitute a continuing prima facie right in the said J. W. Yates to occupy the office as against his adverse claimant.

It is a general rule of law that an injunction will not be granted to prevent a party from exercising a public office pending proceedings to determine his right thereto. On the other hand an injunction will be granted at the instance of an incumbent of office to restrain a claimant from interfering therewith until he has established his claim to the office in direct proceedings to try title.

46 C. J. 1008, sec. 215.

The principle is well established that courts of equity will by injunctive process protect the incumbent of an office who shows a prima facie right to continue in office, against the intrusion of adverse claimants out of possession who are without right or title to the office or whose title is not yet established.

Casey v. Brice, 55 So. 810; 2 High on Injunctions (2 Ed.), par. 1315; 5 Pom. Eq. Jur. 335; Wright v. Cook, 113 So. 252; Doughty v. Bryant, 145 So. 420.

In the case at bar the bill avers that the adversary claimant was ineligible to hold the office and could not qualify and we submit that the averments of the bill do sustain the equity of the bill.

Wood v. Miller, 242 S.W. 573.

It has come to be well settled that an incumbent of a public office may employ the remedy by injunction to protect his possession against the interference of an adverse claimant, whose title is in dispute, until the latter shall establish his title by law.

State ex rel. Garrison v. Brough, 113 N.E. 683; Casey v. Brice, 55 So. 810.

There is an adversary claim between the said J. W. Yates, the legal officer in actual possession of the office, and the said Summers, based on Summers' ineligibility and his inability to qualify. If the said Summers lacked the property qualification, required by the statute, which is charged in the bill and admitted by the demurrer, then he could not truthfully take the oath of office and could not qualify so as to have conferred upon him a prima facie title to the office.

A person shall not be a member of the board of supervisors who is not a resident freeholder in the district for which he is chosen, and the owner of real estate of the value of three hundred dollars.

Section 196, Code of 1930.

The case of Guillotte v. Poincy, 6 So. 507, is a case upholding the general principle which we contend is applicable to the case at bar, and in which the facts are strikingly similar to the facts in the case at bar.

The general principle of protection of a public officer in actual possession of an office by injunctive process until the adverse claimant shall establish his right by judicial proceeding provided by law is of such general application that to cite all the text writers and cases would unnecessarily prolong the discussion, hence we refer the court to only a few further citations:

22 R. C. L. 113, page 454; State v. Superior Court, 17 Wash. 12, 48 P. 741, 61 A. S. R. 893; Black v. Lambert, 235. S.W. 704; State v. Bratton, 253 S.W. 705; School Dist. No. 47 of Waseca County v. Wesie, 79 N.W. 668; Hardy v. Reamer, 66 S.W. 678.

We submit that we have examined the cases below listed and find that each case is an approval of the principle that a court of chancery or equity will protect the incumbent of an office holding under color of right or who shows a prima facie right to continue in the office, by injunctive process.

Cutten v. McCarthy, 118 P. 233; Barendt v. McCarthy, 118 P. 228; Felker v. Caldwell, 123 N.E. 794; Huntington v. Cast, 48 N.E. 1025; Goin v. Smith, 260 S.W. 10; Hollar v. Cornet, 138 S.W. 298; Beck v. Kerdan, 183 N.W. 742; Blain v. Judge Chippewa Cir. Ct., 108 N.W. 440; Strenglein v. Judge Saginaw Cir. Ct., 87 N.W. 449; Gaudalupe County v. Anaya, 242 P. 335; Armijo v. Baca, 6 P. 938; State v. Brough, 113 N.E. 683; Reemelen v. Mosby, 26 N.E. 717; Allison v. Massey, 235 P. 192; Walker v. Hopping, 226 S.W. 146; Young v. Dudney, 140 S.W. 802; Ehlinger v. Rankin, 29 S.W. 240; Brown v. Rock, 133 A. 245.

Section 176 of the Constitution of Mississippi provides that no person shall be a member of the board of supervisors who is not a resident freeholder in the district for which he is chosen. The value of the real estate necessary to be owned to qualify persons in the several counties to be members of said board shall be fixed by law.

The bills of complaint aver that the said A. G. Sumners is not a resident freeholder and cannot qualify. Whether he is or not is a matter of proof which could be made at a hearing on the merits or in a proper proceeding for the judicial determination of title. The bills of complaint were demurred to and dismissed on motion to dissolve the injunction. The averments properly pleaded were admitted by the demurrer. We submit that the averment as to eligibility of the said A. G. Summers was well pleaded. The averments of the bills as to eligibility are strengthened by the positive terms of the section of the Constitution and the statute covering this proposition.

The authority given by statute to an officer to hold over until a successor is duly elected and qualified is just as much a right in the incumbent as is that part of the statute which fixes the definite period.

State v. Hays, 45 So. 728, 91 Miss. 765; Berry v. Berry, 144 So. 695, 165 Miss. 472.

It is averred in the supplemental bill filed by J. W. Yates, that after A. G. Summers had been enjoined from interfering with the incumbent, Yates, in the discharge of his duties in the office of supervisor of Bolivar County for the third district, he reported to the Governor that a vacancy existed in said office and sought and secured appointment to fill such vacancy until a successor is duly elected and qualified, and acting upon such appointment, by telegram, the said Summers attempted to qualify by filing a new bond and an oath of office. What are the legal results of his acts in this respect? Did he not waive any rights he had under the election?

A waiver is defined as an intentional relinquishment of a known right.

27 R. C. L. 904 (2); Attorney General v. Maybury, 141 Mich. 31, 113 A. S. R. 516.

His acts and conduct with reference to the question of vacancy and acceptance of an appointment to fill same conclusively lead to one of two conclusions: first, an intention to abandon his...