McLane v. Scofield

Statement. BRONSON, J. This is a proceeding to enjoin the sheriff and other county officers from appointing or paying certain special deputies. [385] The complaint alleges that between July 1st and 25th, 1922, the G. N. R.y. Company had appointed and employed certain peace officers, so designated by it under the statute, in and about its property at Minot, North Dakota; that the sheriff, without any emergency existing therefor, appointed about twelve special deputies to serve as such until removed; that such deputies so appointed were then and are now in the employ of the railway company, receiving compensation from the company as peace officers; that such persons are in the employ of Ward county as special deputies and are demanding and receiving pay from Ward county as compensation for their services; that the county commissioners, county auditor, and county treasurer are about to expend and use the funds of Ward county in payment of the compensation of such special deputies and will do so unless restrained and enjoined by the court. With the complaint there are two affidavits: One, by the plaintiff, to the effect that the sheriff had appointed some twelve special deputies who were in the employ of the railway company; that these special deputies were receiving $6 per day and meals; that the railroad company was paying one half thereof and furnishing the meals and that Ward county, pursuant to the understanding, would pay the remaining one half, or $3 per day. Another, by one Barnum, to the effect that on July 12th, 1922, he and two others were appointed by a deputy sheriff as special deputies to work for the G. N. Ity. Company and to watch its property; that the understanding was that they should receive $6 per day and meals, of which the county would pay one half and the railway company one half; that he was instructed to report to, and work under the direction of, a person in the employ of the railroad known as chief of railroad police; that a large number of special deputies were appointed and were working under the direction of such chief; that affiant worked under the direction of Lano for a day and a half and was paid for such time by the railroad company $4.50 and was furnished his meals. Upon such complaint and affidavits, the trial court, on July 25th, 1922, issued a temporary order, restraining the defendants from appointing and qualifying such peace officers and special deputies and railroad police in the employ and pay of the railway company as peace officers and restraining them from continuing the appointment and [386] employment of sucb special deputies. On July 27th, 1922, the defendants interposed a demurrer to the effect that the complaint does not state a cause of action and that the plaintiff has no interest other than that which could be claimed by the public at large; also, defendants moved to vacate the temporary restraining order upon the grounds that the court was without jurisdiction to issue the same and that it is an interference with the sheriff in the performance of his executive duty; and, further, that it does not appear that plaintiff has any interest other than that of the public at large. On August 5th, 1922, the trial court overruled the demurrer, with leave to the defendants to answer within thirty days, and quashed the motion. The court also continued the injunctional order. On September 29th, 1922, the defendants appealed from the order overruling the demurrer, and from the order continuing the- restraining order and refusing to vacate the same. Opinion The basis of plaintiff’s right to maintain this action is that he is a resident and a taxpayer of the county. As such he seeks the exercise of the judicial sovereign power to restrain an executive officer from making or continuing a discretionary appointment, and, further, to enjoin other county officers from paying out county funds to special deputies appointed by the sheriff. So far as the action concerns the sheriff, the plaintiff seeks to enjoin the commission of an alleged public wrong, namely the illegal exercise of a discretionary power of the sheriff. As against the sheriff he seeks relief like unto prohibition; a judicial decree to prohibit the sheriff from making appointments, founded upon the idea that the sheriff is without legal authority so to do. Whether the acts of the sheriff may occasion any loss to plaintiff as a taxpayer is a question both remote and contingent. It is a question that depends upon many considerations. Considerations that involve perchance, the probability of presentation of any bills to the county; the probability of their allowance or disallowance and the legal liability of the county in case of allowance. The complaint alleges no necessity for plaintiff’s championing the interests of the state in order to prevent the sheriff from exercising his discretionary power to appoint special deputies. In this regard [387] bis position is that of a private individual who has sustained no injury and has shown no special or peculiar interest in the subject-matter alleged. So far as the other defendants are concerned, the complaint neither alleges nor shows that a single bill of any kind has been presented to the county or its officers for audit or payment, by reason of the sheriff’s acts. There is no specific showing or specific allegation that such defendants are about to act illegally or contrary to law to the injury of the plaintiff as a taxpayer. Even the affidavit made and submitted by the person who was employed as a special deputy does not show that he made any demand, presented any bill, or received any pay, from the county. The complaint is insufficient to warrant relief to the plaintiff under general principles which apply when a taxpayer is seeking injunc-tional relief. Even though it be conceded, for purposes of argument, that the county should not pay such special deputies a per diem and mileage (§ 3524 Comp. Laws 1913) when such special appointees of the sheriff are also peace officers already appointed by a corporation who is obliged under the law, and who has agreed to pay their fees and expenses (§§ 4810, 4811, 10,586, 10,590; Comp. Laws 1913), it does not follow that this affords any ground for injunctional relief to a mere taxpayer in a private suit upon general allegations of probabilities. It will not be presumed in advance that the disbursing officials of the county will disburse county funds illegally. The proceeding should be, and is, dismissed. Biií.dze'll, Ch. J., and RobiNSON and Ci-ihistiaNSON, JJ., concur.