Blain v. Chippewa Circuit Judge

108 N.W. 440, 145 Mich. 59, 1906 Mich. LEXIS 730

• Court: Michigan Supreme Court
• Decided: July 9, 1906
• Docket: Calendar No. 21,721
• Status: Published

Opinions

Hooker, J.

The relator and one Hecox were opposing candidates for the office of recorder of the city of Sault Ste. Marie at the recent election. Hecox was recorder last year. The returns of inspectors showed that Blain received 948 and Hecox 943 votes. The old council met as a board of canvassers April 5, 1906, and refused to canvass these returns, for the reason that Hecox had demanded a recount in three wards. A resolution was adopted granting the recount, and a committee was appointed to make the count. Blain, by counsel, protested against this action. The council was adjourned to April 7th, when the committee reported that on April 6th they had been enjoined, at the suit of Mr. Blain, from opening the boxes or counting the ballots by a writ of injunction, allowed by a circuit court commissioner, and had not, therefore, made the recount. They had, however, taken the testimony of two inspectors in the second ward (one of the wards to be recounted under the resolution), and that it showed that about 30 ballots were cast which were not initialed by the proper inspector, and to the best of their recollection 8 were cast for Mr. Hecox and 22 for Mr. Blain, and that after inspecting the returns of the inspectors and taking into consideration the aforesaid testimony the council found that Hecox had received 935 votes and Blain 926. Thereupon the council passed a resolution declaring Hecox elected.

On April 16th the new council met, and the relator, Blain, presented a written request that the council forthwith canvass the returns of the inspectors, and declare him elected to the office of recorder, which was done. He filed an oath of office and a bond, and claims to have been in full possession of the office and performing all of the duties of recorder, when a bill was filed by Hecox, upon which the circuit judge made an order to show cause why a preliminary injunction should not issue to restrain intrusion by the relator, into said office, until the title to said office should be lawfully determined, in a proper proceeding, and upon the hearing made the following order:

“Defendantshaving been heretofore ordered to show cause why an injunction should not be allowed as prayed for in said bill of complaint, and hearing thereon having been adjourned to this day, and the said defendants, by way of showing cause, having filed a sworn answer to said bill of complaint, and said matter coming up for consideration upon said bill and answer, and after hearing M. M. Larmonth, solicitor for defendants in their behalf, and Horace M. Oren, one of the solicitors for complainant on the latter’s behalf; it appearing that on the 17th day of April, A. D. 1906, said complainant was in full possession of the office of city recorder of the city of Sault Ste. Marie, its books, records, and property, engaged in the performance of the duties of said office without obstruction, aijd that on said date said defendants, without process or order of any court, forcibly broke open the door of said office, took possession of such books and papers as were not in the safe, and forcibly ejected complainant from the room, in which said office is located, and by force and threats prevented him from entering said office and performing his duties therein; therefore in restraint of unseemly conduct and to restrain invasion by force, without passing upon the de jure rights of the contestants herein, it is ordered that a peremptory writ of injunction do forthwith issue under the seal of this court commanding the said Thomas Blain and George Barr, their counselors, attorneys, solicitors, and agents and each and every one of them, that they forthwith desist from further taking possession of the books, papers and property appertaining and belonging to the office of recorder of the city of Sault Ste. Marie; that they desist from preventing said Clyde W. Hecox, complainant herein, from keeping possession thereof; that they desist from excluding said complainant from the rooms of the office of recorder of the city of Sault Ste. Marie; and that they desist from any interference with said complainant in his full performance of all the duties of the office of recorder of the city of Sault Ste. Marie, until the rights of the said Clyde W. He ©ox not to

hold said office is judicially declared in a proper proceeding brought to that end.

“Dated April 25, A. D. 1906.”

The relator thereupon obtained an order requiring the circuit judge to show cause why a mandamus should not issue to compel him to dissolve said injunction, to which he made answer.

We do not discover that a motion was made to dissolve the injunction before application for a mandamus was made. This was a formal prerequisite; see Stenglein v. Saginaw Circuit Judge, 128 Mich. 440. But counsel seem to have raised no question over the practice, and, inasmuch as the injunction was allowed after a hearing upon a preliminary order to show cause, we dispose of the cause on other grounds. It is not to be considered a precedent that will be followed hereafter, however.

The return of the respondent states in full the proceedings of the council whereby Hecox was declared elected, and that the answer of relator to complainant’s bill did not question the facts stated in proceedings, and that in said answer it was admitted, as stated in the bill, that upon the declaration of Hecox’s ■ election, on the 7th day of April, 1906, he executed and filed in the office of city recorder the constitutional oath of office, and executed an official bond as required by law; the same and the sureties thereto being approved by the council at its April 7, 1906, session. The return shows, further, that the following was made to appear, and respondent took it as true:

“That on the 17th day of April at about 11 o’clock in the morning said Blain appeared at the office of said city recorder with one George Barr, a deputy sheriff in and for said county, without process, or any order of court entitling them to take possession of said office; that the said Thomas Blain thereupon demanded said office, and, upon Hecox’s refusal to turn the same over, with the aid of Barr forcibly broke open the door of said office, took possession of such of the books and papers of said office as were not in the safe, and forcibly ejected complainant from the room in which said office is located, and by force and threats prevented said Hecox, his deputy, and clerk from entering said office and from further performing the duties thereof;” and that, “it did not appear by the pleadings, exhibits, affidavits, etc., before respondent at the tirhe of the hearing upon said application for a restraining order, all of which are attached to relator’s petition, that said relator Blain, at the time of the exhibition of said bill of complaint, had obtained possession of all the books, papers, records and property appertaining to said office; but it did appear that neither Blain nor Hecox were at time of the exhibition of the bill of complaint, in full ■possession of all of the property, records, etc., although Blain was contending that he was, but that there had been a legal and physical contention over the office, and that Blain had by force entered the office room and put Hecox out and had actually obtained possession of such books and papers in the office room as were not in the safe. And it appearing from paragraph 7 of complainant’s bill that said Blain was by force and threats preventing Hecox, his deputy, and clerk from entering said office and from the further performance of the duties thereof, and that there was a probability of unseemly conduct unless the court should proceed to prevent it, the preliminary injunction was granted, the court taking the view that his authority and duty in the premises was governed by the case of Stenglein v. Saginaw Circuit Judge, reported in 138 Mich. 440.”

From the foregoing statement it appears that there was a bona fide dispute as to the title to this office; that Hecox was in possession of it, by virtue of a holding over, and under a declaration by the common council — i. e., the board of canvassers. He was, therefore, a de facto officer, and, being a de facto officer, his competitor was not justified in attempting to take possession of the office by violence.

It may be said that chancery should not interfere by injunction in cases where the bill not only fails to show a prima facie right to the office in the complainant, but, on the contrary, shows such right in the defendant. In the present case it is claimed that the charter makes the new council the judge of the election of the recorder, and that, its action being final, the bill on its face shows that the complainant was not, and that defendant was, entitled to the office, and therefore we should compel the dissolution of the injunction. On the other hand, it may be and is said that this is not a correct construction of the charter,' and that there may be doubtful questions of law as well as of fact, and that there may be an erroneous decision of the former, as well as of the latter, requiring correction by an appellate court, and that there is as much propriety in protecting a complainant’s interests by injunction in the one class of cases as the other, and there is force in the claim that in such a case the court is not without jurisdiction to issue the writ, and that being so, this court should not .invariably compel the dissolution of the injunction, where its opinion of the disputed question of law differs from the claim of the complainant. This court has held, in many cases, that where the point in dispute, and on which the right to an injunction must turn, is a question of law, it may compel dissolution. Van Norman v. Jackson Circuit Judge, 45 Mich. 204; City of Detroit v. Wayne Circuit Judge, 79 Mich. 384; Ionia, etc., Ins. Co. v. Ionia Circuit Judge, 100 Mich. 606 (32 L. R. A. 481); Board of Sup’rs of Wayne Co. v. Wayne Circuit Judges, 106 Mich. 166; Thomas v. Kent Circuit Judge, 116 Mich. 106; Kelsey v. Wayne Circuit Judge, 120 Mich. 457; Stenglein v. Saginaw Circuit Judge, 128 Mich. 440; Central Bitulithic Paving Co, v. Manistee Circuit Judge, 132 Mich. 128. It has not held, however, that the writ must issue in every such case. See Kelsey v. Wayne Circuit Judge, supra. And we can imagine cases where it would be unjust to enforce, as a hard and fast rule, so technical a practice; e. g., where the bill might be cured by amendment. In the case of Selchow v. Baker, 93 N. Y. 59, it was held that:

“While, when a complaint shows no cause of action, the granting of a preliminary injunction is an error of law, which may be reviewed on appeal, the case must be very clear to justify the court in deciding the merits of the controversy on a mere motion, * * * and the court would ordinarily decline in a case presenting any serious question, to deprive either party of the privilege of having the merits of his case deliberately heard and passed upon on appeal from the final judgment.”

In the present case it may be said that a construction of the charter would settle whether the action of the new council is final and conclusive, and, if so, it must establish relator’s right to the office; hence the propriety of this temporary injunction must finally rest on the determination of this one question of law. If it be conceded that this is true, it cannot be denied that the complainant was a de facto officer as the court held, and that the court had power to protect him in his custody of the office, until his right should be tested in a proper forum and proceedihg, whether the result of such a proceeding must ultimately turn upon a question of law, or a mixed question of law and fact, and that to issue this writ upon the ground stated, would practically try the title to this office, which he was not disposed to do in that proceeding. To the suggestion that the injunction should be dissolved upon the ground that Blain and not Hecox is the de facto officer, we reply that this claim can only rest upon the proposition that, while Hecox was unquestionably an officer in possession, claiming title to the office, and performing his duties whenever occasion presented, Blain, by virtue of a trespass and the acquiescence of his friends, whereby he excluded Hecox from the official place of business, and in part of the property belonging to the office, and proceeded to perform its duties when opportunity offered, thereby became the de facto officer instead of He-cox, and that therefore this injunction could not be lawfully issued, because restraining him from performing the duties of the office would be ousting a de facto officer. We are of the opinion that this is unduly dignifying an attempt at forcible usurpation, and that Hecox is the de facto officer, and that if his bill made a prima facie case in the opinion of the circuit judge, it was a proper exercise of discretion to restrain interference with Hecox’s performance of duty by Bláin. Certainly the question of who is really the de facto officer cannot depend alone upon the ability of one to forcibly exclude an officer from his place of business, and while holding him out by force perform its duties to the extent of doing such business as is presented. Such methods of obtaining possession of a contested office would have the advantage of apparent simplicity, but would not tend to the preservation of the public peace. This opinion rests upon tho belief that the bill shows Hecox to be the de facto officer, in possession of the office when the application for injunction was made.

The case of Stenglein v. Saginaw Circuit Judge, supra, cited by the learned circuit judge, is on all fours. There the right depended upon the question of the constitutionality of a law. Here it depends on the construction of the law. In each case the judge, in his discretion, refused to enter upon the question of the right to the office, enjoining intrusion until settled by the proper proceeding. We think that this was not an abuse of discretion, and that we should not interfere with his discretion in that regard, by compelling a dissolution of his injunction, -thereby practically trying the title to an office upon mandamus, when we cannot say that the circuit judge erred in refusing to do so on a motion to dissolve an injunction which he had jurisdiction to allow.

The writ is denied.

Grant, Montgomery, Ostrander, and Moore, JJ., concurred with Hooker, J.