Hurley v. Board of Mississippi Levee Commissioners

Whitfield, J., delivered the opinion of the court. We think the clear preponderance of the testimony shows that Jacobs subscribed his oath, and we hold he was, and is now, the legal commissioner. Section 3, Laws 1884, p. 165. Aycock was not a commissioner dejure or defacto. The contention that this is an effort to try a contested election case in chancery is unsound, and arises from a misconception of the scope and purpose of the bill. The ground of equitable jurisdiction invoked is the power of the court by injunction to prevent the taking of the citizen’s property without due process of law, by an illegally constituted tribunal. In principle, the case is to be tested by the same rules which would apply if three persons, clear usurpers, were being called on to act as the commissioners to assess damages. It can make no difference as to the legal constitution of the tribunal, that one, instead of three, is objected to as an illegal .commissioner. Two legal commissioners must concur in the assessment of damages, and, where there is one illegal commissioner, his concurrence with one of the legal commissioners against a dissenting legal commissioner would-clearly not make the award legal, on the idea that two make a quorum. It requires the concurrence of two legal commissioners to make a valid award, as well as the [156] presence of two legal commissioners to make a quorum. Two might constitute a quorum, just as if the illegal one were not there; but when one of the two legal commissioners differs in the matter of the award, the illegal commissioner adds no validity to the judgment of either. His action is bruPum f ulmén— a nullitjn Section 3 of the act of 1884 prohibits the granting of an injunction which interferes with the action of a legally constituted board. Granted that the commissioners are legal commissioners, no injunction may be issued to restrain them. But it was never intended that three persons, never legally appointed, clear usurpers, could, because called on to act as the legal board, not be enjoined from proceeding with the exercise of usurped authority. The mere fact that, incidentally to the determination of the main question, whether the citizen’s property is being taken without due process of law, it becomes necessary for the court to decide—not for the purpose of entitling either to the office, but merely for the purposes of this suit— whether Jacobs or Aycock was the legal commissioner, in no way defeats the jurisdiction to administer the equitable relief, the basis of the bill. Such decision, for the purpose of this suit, does not settle the right to the office in the sense that a judgment in a contested election case would at law, where the right to the office was the only thing to be settled. The principle is very clearly stated in Johnston v. Jones, 23 N. J. Eq., 225, 226. The court say—admittedly one of the ablest equity courts in the union: “It is clear that- a court of equity has no jurisdiction to remove an officer of a corporation from an office of which he has possession, or to declare the forfeiture of such office. Its decree will not, like the judgment of a court of law, operate in rem, and remove or oust anyone from an office which he in fact holds. When the object is simply to determine the regularity of an election or to declare an office to which anyone has been duly elected forfeited, a court of law is the only competent tribunal.” But, “if the [157] question of the legality of an election, or whether a certain person holds such an office, arises incidentally in the course of a suit of which equity has jurisdiction, that court will inquire into and decide it as it would any other question of law or fact that arises in the cause. ' But the decision is only for the purpose of the suit. It does not settle the right to the office or vacate it if the party is in actual possession.” It is obvious that an appeal in such a case is wholly inadequate, and that there is no adequate remedy at law. The general principle upholding the jurisdiction of the court may be found in sections 668 and 681 of 2 Beach’s Modern Eq. Jur. In the former section it is said: “And upon similar broad, equitable principles, where irreparable injury is threatened to the property of an individual by the illegal acts of public officers, as, for example, where they threaten to appropriate private property to a public use in violation of law, the person to whom the injury is threatened may have an injunction to restrain such illegal acts,” citing Smart v. Hart, 75 Wis., 471, where it is very pertinently observed that, “ however unjust or unwise it may be on the part of the plaintiff to stand in the way of a public improvement which is greatly desired by the people, this fact can have no force in conferring a right upon the defendants which is expressly denied them by statute, ’ ’ such an act being ‘ ‘ a usurpation of power and wholly void.” And in section 681, supra, it is stated that “ where the power of eminent domain has been delegated to public officers or others who are threatening to make a permanent appropriation of private property to public uses in excess of the power granted or without complying with the conditions upon which the right to make the appropriation is given, a court of equity will prevent the threatened wrong without regard to the question of improbable damages or the existence of legal remedies which may afford a money compensation,” citing many authorities. The decree is reversed, and decree entered here perpetxnting the injunction.