Burke v. Leland

Vanderburgh, J. The plaintiff alleges that he was duly elected trustee of the village of Wells, and is entitled to exercise the duties ' of that office, and that defendants have unlawfully intruded into the office and usurped the functions thereof, and ousted plaintiff therefrom. The complaint shows that the defendants, wrongfully, unlawfully, and without authority of law, are about to act as the village council of the village of Wells, aforesaid, and, so wrongfully assuming to act as such village council, are about wrongfully to dispose of certain property of the village. The complaint also states that the defendants, “so wrongfully and unlawfully assuming to act as village council of the village of Wells, and without having been duly or law [357] fully elected thereto, and without any authority of law therefor, are about wrongfully and unlawfully to issue and sell certain bonds wrongfully purporting to be duly and lawfully issued by the village of Wells, all of which acts are without authority of law.” The plaintiff thereupon asks for an injunction restraining them from doing the acts mentioned. A temporary injunction was issued by the court, upon filing the complaint, but, upon motion, it was afterwards dissolved, and from the order of the court dissolving the injunction this appeal is taken. It is obvious that plaintiff’s claim for relief is based upon the alleged fact that the defendants have unlawfully intruded themselves into office, and are assuming to act as a village council without having been duly and lawfully elected. No other facts’ are alleged disclosing the illegality of the alleged threatened wrongful acts. It is well settled that the question of their title to the office, and right to exercise its functions, cannot be determined in a suit for an injunction or in mandamus proceedings. State v. Williams, 25 Minn. 340. The defendants could only be restrained from the performance of acts shown to be unlawful and unauthorized, if attempted to be performed by a lawfully elected council. The injunction was properly dissolved. Order affirmed. (Opinion published 53 N. W. Rep. 716.)