, 1876-05-09
PHILLIPS VS.. GRAY.
The hummer Assessors Application for
an Injunction Refused by Judge
Farwoll.
An Equity Court ls Not tho Plnco
to Determine Contested
Elections.
arsy Has Color Of Office, and Ii Legitimate
ly In tho Discharge Of Ills
Duties.

ly In tho Discharge Of His
Duties.
phillips' Only Remedy IL to Sue for
Possession of the Office.
Judgc Farwcll delivered The following do.
deion In the cana Of Edward Phillips VI. Hcrnehn
LIB and ot!,ors, In which 40 application for an
iouuction was mado to restrain Mr.. ". D. II.
(,,s7 from Acttng ~ Aesessor OF tho Town Of
eouth Chicago:
1hsvo o1arnlnel thia cAae ~ carefully - could
under tho cirs,tnstancss aud ths time wll!c! had p
eye II. nnd Locked into all thu authorities which
re'ssroa to by counsel on either 'id' and am
prepared 70 decide II, ,., ,,,u. .,.. ~. l., II.
bill that At tho town meeting Of tbs Town Of South
Chtraso. hold in APRIL ho was candidate ior A.
9s nc E,o o ~as ea a, ta s
declared ecctod Asaessor aud that tbs proper ccrl.
ala given him 10 that cdcct- lilo seta ont, also.
btfn declared etectod tho Board Of Appointments Of
hs town. eonsistne Of tho 1ussssea 81 1he fsaee w.
pptesing esnditates for tis onlee WHO ha run Il
iii town meeting, tho defendant William d. N.0ray,
W splolatea by TIL. beard or app9naens - A.,
d elect A.aeasor At the town meeting tas 4 WIS
nled before TINT board 1t that thssS
teharacter IN to make the election absolutely yold
hat thprn had been failure 10 olect ahy officers,
,mong them tho Asscsaor that, therefore. tho Board
inasser md that they undertook 10 o se that tlcy
oetei Assessor; that sAo County CLERK, whose duty
v1s give TO tie Asaeaaor the baeks sa papers nee
ttaary TO enhble him to discharge bis duty and mako
h!s asseaamons refused to recognize complainant ae
ASSESSOR, but thtsatcncd and s1sd that hc would
recoguizc Gray as Assessor under this appointment
BY tie Town Doard and that ho threatened to dul!ver
b him thu b1okH not 10 RTc f4Stn
Fhips. The bill .eta out that uneh. this Town board
Ind County clork arc restrained y thie Court from
Phillips, that 1!llipa will not 10 able 70 proceed, and
ih,t dray Will: that Phillips will not DO ablc to make
one that tie appointment o 9rsy IL absolutely void;
thit an ansess1e1t made by him rouI! not 10 good;
that II would throw hn asaes.cnt ana she public #
tansy by which, great damage. would 10 done: and,
therefore, t. proper lcase for this Court 70 Inter
Gray from h1ing bis salary, aud 10 enoin tto cou-
y CLERK from recognizing Gray, giving HIN my
lie answer OF thcss defendants and the sthlarlts
f!ed set out The ground Of tho action Of the Town
Board III making tAss appolatmcnt It sppears feo,
10 &1cn, md gccfne 10 be satisfied that such wa8 tho
fact ilat the town election
WAS YnAUDULEaT1Y CONDUCTED,
p tha election "a to mako II yoi That il to say to
mako 1t im!'ossiblc to dctern,ine who, II, any
ss on ri H. esa 4 + as sos WI '
iho laot.bo1es were Afterwards tampered With;
hat srgo uuHhc1s Of votos must have hfcn taken out
fraudulenty by somo ono md largo uuinber Of
fraudulent votea put I'll by sone one; TINT there was
.ueh atae Of things 81 nrpcafc1 TO them TO render
tody; aud that, Upon That groand, thty took upon
themselves to roy, under tho Law that there was
Thgy seen.cd to tavo considered It their right aud
tuy under tho circumstances 10 proceed In tins ndo'
pendent manner, not waiting tu whehor tie cleo
hon would TO contested in Tho manner provided hy
WHITTIER PROCEEDINGS br WnrrdrfN
might be instituted TO determine whether Phillips,
kbo had receisod Its certificate wns Legally eectcl,
Ind then, upon Judicial determination BY
tho bodies authorized to act. to make tue appon-
nent IN tho manner provided, but they seemed 10
Without waiiug for the action Of any Of oso bodies
provided by Iaw, whether there had been failure To
tect n, to proceed accordingly, and they accordingly
did 40.
Now, win not undertake. to c1press my oplnlon-
Via not necessary for me 10 DO 10. aud would probably
press ~ oplnon ~ to whether Tho board ot
Town Go.nnahaionsrs hase right legally
T. ,s :Soa e nss ecesars I ns OR swn
board not to WHIT for somo judicial action. either
under tho satue relating TO eontentel elections by
thero vas vatacy Of whether .boy had tic Tjyt ic
proceed independently: will 10. undertake to ex
ets4 eR?n sa a a y T9 Town Ts,f
natuto when thare is failure elcet, tho statute no
ayins who !, 70 deternne that to arpota. officer
nasulich q they have undertasen 10 act u1Ider thai
1atutr. a1thase given certificate of appointment Il
iNrson whom they appointed. aud that person hal
commenced upon tho discharge Of h3s dutius because
haprcara from tho anawers aud papcra accompanying
them that tho defendant {Qray) has presented his
docunlenh 70 tho County Clerk, aud that the Count,
Clerk has delivered to lin thu aaacssucnt-rolls
suc papers na he had tho grest bulk Of thuse wllcl
III to havs aay 9at to from arst to la4., slul
thcsto Of appointment, such authority Of o!l!o.
apparently. good AZ color Of atits. he Il
sus. in the full sensa Of thu &orl In an,
sysnt mere Intruder; lo has papers glvei
hin by persons authorized BY law to 9iys theu,
lAeIe is no presumption, and there can b. no pro
!ampuon. that rurEou holding certificate from tit
Board Of Arno!nsmont Ia holding 1t illegally and iu
hammer which nlakea II void ans thln Ia lsrso,
sho hoila. as Phillips holds Lis, ce1t!Gcate OF III,
soper officer that he elected. In the one case
Va certificate Tint the man IL elected given by per
oa authorized to give Il. and tntho other case 1t l.
The certificate Of tho Hoard Of appointment Which
ssshortzed 70 nppntnt him un!er certain oontin
hes are color Of onlco. - @'''''
Now, ln tlia case. Gray has = certificate from th