Foster v. Moore

The opinion of the court was delivered by Hurd, J.: Motion for a temporary restraining order, and motion to dismiss the action. The plaintiff filed an original petition in this court, alleging that he was duly elected to the office of county attorney of Saline county, and has entered upon the duties of the office, and has since continuously performed such duties; that about the 25th day of April, 1884, the defendant usurped and intruded into and now unlawfully claims to hold and exercise the said public office, and is doing and attempting to do and perform certain acts in such office, without the legal right to do so; that the public welfare and peace of society demand that he be restrained from performing any public duty in such office pending the litigation involved in the petition; that both the plaintiff and the defendant are recognized by the clerk of the district court of the county as such county attorney, and by him permitted to file informations as county attorney in such court; and that said defendant is attempting to exercise the duties of the office to the injury of the plaintiff and the public. The final judgment prayed for is, that the defendant be prohibited from exercising or attempting to exercise any power or duty in such office; and plaintiff asks further that pending the suit, the defendant be restrained from exercising any act or duty of the office. The plaintiff gave notice of this motion for an order restraining the defendant from exercising any act or duty in the office of county attorney pending the litigation. The defend [485] ant filed his motion to dismiss the action, for the reason that this court, has no jurisdiction of it. The motions were heard together. This is an original suit brought in this court, the sole purpose and object of which, as shown by the petition, is, to prohibit the defendant from exercising or attempting to exercise-any power or duty of• the office of county attorney of Saline county. Section 3 of article 3 of the constitution confers upon this court original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus, and neither the constitution nor the statutes give it jurisdiction in original suits for injunction, or to issue restraining orders pending such suit. We think this court has no jurisdiction in this action, and therefore the motion to dismiss it is sustained. All the Justices concurring.