HOWE v. DUNLAP

HOWE v. DUNLAP
1903 OK 22
72 P. 365
12 Okla. 467
Decided: 02/06/1903
Supreme Court of Oklahoma

R. D. HOWE, City Attorney of the City of Hobart
v.
A. J. DUNLAP, Mayor, W. C. BRADY, W. R. LIVERMORE WILLIAM HOCKENSMITH, R. R. ROHRER, W. A. WRIGHT, G. A. MAHAFFIE, C. W. GORDEN, as Councilmen of said City of Hobart, AND R. W. SHEPHERD, as City Attorney, AND J. G. HARRIS, as Police Judge.

Syllabus

¶0 CITY OFFICER--Removal--Injunction
Will Not Lie, When. Injunction is not the proper remedy to test the validity of the action of the mayor and council of a city who have removed the city attorney from office upon charges of misconduct in office; and injunction will not lie to restrain the mayor, council and police Judge from recognizing as city attorney the person elected as successor in office of the person so removed.
BURWELL J., dissenting
(Syllabus by the Court)
The plaintiff in error was the city attorney of the city of Hobart, having been elected to that office in October, 1901. On February 11, 1902, he was removed from office by the mayor and council of the city of Hobart, upon charges of misconduct in office preferred against him. This action was commenced on the 20th day of February, 1902, following the action of the mayor and council in removing the plaintiff from his office. The plaintiff brought this action to enjoin the mayor, city council, and police judge from recognizing and treating the defendant, Sheperd, as city attorney of the city of Hobart, and to restrain and prohibit Sheperd from usurping the office of city attorney, and to restrain such mayor, council and police judge from refusing to recognize the plaintiff as city attorney of the city of Hobart, and from depriving him of the honor, pay, emoluments and the enjoyment of the rights and privileges of the office. A restraining order was issued by the probate judge, in the absence of the district judge from the county. A motion was filed to dissolve the temporary order of injunction. On the 3rd day of March the motion to dissolve the injunction was heard by the judge of the district court, the motion was sustained, and the restraining order issued by the probate court was dissolved. Thereafter, at the regular April, 1902, term of the district court, the cause came on to be heard, and judgment was rendered against the plaintiff for costs. From these orders and judgments the plaintiff in error appeals.

January, 1903, Decided

Error from the District Court of Kiowa County; before John H. Burford, Trial Judge.
Action by R. D. Howe, city attorney, against A. J. Dunlap, mayor, and others. Judgment for defendants. Plaintiff brings error. Affirmed.

Keys & Cline, for plaintiff in error.
McGuire & Parker, for defendants in error.

PANCOAST, J.:

¶1 The plaintiff's contention is that the city council of the city of Hobart had no authority to oust the plaintiff from office, because such action required the exercise of judicial power, and all judicial power, by the organic act is vested in the courts. The defendant in error admits that the judicial power of the territory is vested in the courts under the organic act, as claimed by the plaintiff, but they contend that the removal of a city officer is not the exercise of judicial power but is an exercise of political power, and that such power is administrative and ministerial in its character and that such acts are therefore within the power of the mayor and city council.

¶2 Numerous authorities are cited by both sides to sustain the propositions contended for. While these are the only questions raised in the briefs, yet we think that the case must be decided here upon entirely different grounds.

¶3 First, it will be noticed that the act of removal took place on the 11th of February, and that this action was commenced on February 20, nine days after the removal had taken place. Injunction is a preventative remedy, and even if it would lie to prevent the removal in any case, this action was not brought in time. But even if the action had been commenced before the ouster, and if the object of the petition had been to restrain the mayor and council from ousting the plaintiff from his office, still such action could not be maintained, because a court of equity will not entertain an action to enjoin the removal of a municipal officer against whom charges of misconduct in office have been preferred. (Muhler v. Hedekin, 20 N.E. 700.)

¶4 The authorities are uniform in holding that a proceeding in the nature of an official inquiry concerning the conduct of a public officer by the council or other body, the possible end being the removal of the officer, are wholly beyond the control of a court of equity. The subject-matter of the jurisdiction of courts of chancery relates solely to civil property. Injury to property, either actual or threatened, is the foundation of chancery jurisdiction. In no case is it concerned with matters of a purely political nature. ( Sheridan v. Colvin, 78 Ill. 237.)

¶5 Unless the jurisdiction of a court of chancery is enlarged by express statutes, it is limited to the protection of rights of property, and has no jurisdiction over the removal or appointment of public officers. (Ex parte Sawyer,

¶6 High on Injunctions, third edition, section 1312, treating of the subject under consideration, has the following to say:

"No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature, and cognizable only by courts of law. A court of equity will not permit itself to be made the forum for determining disputed questions of title to public offices, or for the trial of contested elections, but will in all such cases leave the claimant of the office to pursue the statutory remedy, if there be such, or the common law remedy by proceedings in the nature of quo warranto."

¶7 These principles of chancery are no longer debatable. They have long been settled. The plaintiff's remedy, if he has one, is by mandamus, to be restored to the possession of the office from which he has been removed. (State ex rel. Gill v. Common Council, 9 Wis. 254.) So that, viewing this case from the points indicated, the judgment of the court below must be affirmed, no matter whether the acts of the council were or were not legal for any reason. It is therefore unnecessary to decide here as to whether or not the action of the mayor and council was or was not the exercise of judicial power. Upon the record before us there is nothing to require a decision upon that proposition.

¶8 The judgment of the district court will therefore be affirmed.

¶9 Burford, C. J., who presided in the court below, not sitting; Irwin, J., and Beauchamp, J., absent; Burwell, J., dissenting; all the other Justices concurring.