School District No. 47 v. Weise

MITCHELL, J. The material findings of fact are as follows: At the annual school meeting held in the above district on July 20, 1897, the terms of office of director and treasurer of the district had expired, and by acclamation one Henderson was elected director and one Roesler treasurer of the district) but no ballot was had to fill either of the offices, nor was any ballot cast for either of the persons above named. After such election by acclamation, Henderson and Roesler acted as trustees of the district until the next annual school meeting, held June 18, 1898, at which time, by ballot, in accordance with law, the defendants Bushow and Weise were respectively [169] elected director and treasurer of the district, and thereafter each of them accepted the office to which he was elected, and duly qualified as such. During all this time one Edward Weise was the duly elected and qualified clerk of the district. At the annual school meeting in June, 1898, the legal voters of the district voted to change the location of the school house to a more central site. After their election as trustees of the district, the two defendants and Weise, the district clerk, were intending to hold a meeting as trustees to consider and act upon the determination of the voters in reference to changing the school-house site, but before such meeting was held, or any action taken by them as trustees under such resolution or otherwise, they were served with an injunction issued in this action, and in obedience thereto they have ever since refrained from acting in the capacity of trustees of the school district. This action was brought*by Henderson and Eoesler in the name of the district to enjoin the defendants from acting or attempting to act as trustees of the district. Upon the above findings of fact the court held, as a conclusion of law, that the plaintiffs were not entitled to a permanent injunction, and ordered that the temporary injunction be dissolved, and the action dismissed on the merits. The pretended election of Henderson and Eoesler by acclamation was clearly invalid, because the statute expressly provides that such elections must be by ballot. G. S. 1894, § 3677. Therefore it was the right as well as the duty of the voters of the district to elect a director and a treasurer at the annual school meeting held in June, 1898. The defendants were respectively elected to these offices at the meeting, and have accepted the offices, and qualified as such. They are therefore the de jure trustees of the district, and Henderson and Eoesler have no right to the offices. The position of the latter is that they are still in possession of the offices as de facto officers, and that, while proceedings by injunction cannot be used for the purpose of determining a disputed title to an office, yet they may be properly used to protect the possession of officers de facto against the interference of claimants whose title is disputed until they shall establish their title by appropriate judicial proceedings. This would seem to be a very [170] reasonable rule in cases where the facts upon which the title to the office depends are disputed and uncertain, but it would seem anomalous for a court of equity to exercise its preventive jurisdiction in favor of one who, upon the undisputed facts, had no right to retain possession of an office against another who, upon the equally undisputed facts, was entitled to it. But assuming, without deciding, that the rule invoked by appellants is as broad in its application as they claim for it, the facts found (which is all we have before us) are insufficient to bring them within it. There is no finding that the appellants are still actual incumbents of these offices. The findings of the court are merely that they acted as trustees until the annual school meeting in 1898, at which the defendants and respondents were elected; that thereafter the latter accepted the offices, and duly qualified as such, and that since that election both parties have claimed to be trustees of the district with authority to act as such; but there is no finding that since such election the appellants have assumed to exercise any of the powers or perform any of the duties pertaining to the office. It further appears that the clerk, who has possession of the records of the district and of the board of trustees, recognizes and co-operates with the respondents as lawful members of the board. When a party who clearly has no right to an office is invoking the equitable powers of the court against one who, upon the established facts, is clearly entitled to it, if he has any right at all to the aid of the court, he ought, at least, to establish positively, and in no uncertain terms, that he is the actual incumbent of the office. Judgment affirmed.