The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-12-14
ADVERSE TOTHE PRETENDER
The Demurrer to Green Smiths Injunc-
ton Suit Sustained by Judge Ayres.
of Equity Has No Right to Decide
The Plaintiff Will Appeal.


morning, was to decide the questions arising in
A. G. Smiths complaint for injunctions against
Secretary of State Myers to prevent him from
delivering to the Speaker of the House of Rep
resentahves the sealed packages containing the
certified statements of the returns of the votes
cast for Lieutenant governor at the last election.
The claim set forth by the complainant is that
be election was illegal, and that, as president
Of the Senate, he has succeeded to and is en-
titled to he protected in the discharge of the du
ties of Lieutenantgovernor.
half hundred spectators were there but of
the compliments counsel none appeared,
while Hon. Stanton j. Peelle represent
cd the State in the absence Of At
1orney- general Kitchener. OF other attorneys
there were none, except those who came tocourt
in regular attendance nor in the crowd was any
politician of note observable. Yet very earn
est attention was given to the Judges reading,
which occupied about ten minutes. The issue
came to him on the demurrer of the defendant,
which set up want of jurisdiction and in
sufieiency OF facts to constitute a cause of ac-
tion He said 'Nrany different points and
Questions have been deliberately argued, and,
,fter giving the questions discussed as careful
consideration as my limited time would permit,
/ have come to the conclusion that the demurrer
to the complaint must be sustained. l shall not
attempt to give my views upon all the questions
discussed, but only to briefly state few of the
reasons that have brought me to this conclusion.
The reason which most strongly presents itself
to my mind is, that court of equity will not, in
an injunction proceeding, try or determine
question which involves the right or title to an
Office. Mr.. High, in his excellent work on in
functions (Section 1872, says:
mo principle of the law of iniunctions and per-
haps doctrine of equity jurisprudence is def
tnitely fixed more clearly established than that
courts of equity will not interfere by injunction
determine questions concerning the appointment Of
public officers their title to Office such questions
being of purely legal nature and cognizable only by
itself to be made the forum for determining disputed
questions of titles to public Offices for the trial of
contested elections but will in all such leave
the claimant of the Office to pursue the statutory
edy, If there be such, the common law remedy by
proceedings in the nature of quo warranto.
"A court Of equity will not only not try the
title to an Office. but it will not determine dues-
tions which affect the title to the Office The de-
cisons upon this question numerous and
uniform. Indeed. do not understand any of
counsel for plaintiff to dispute this proposition,
and in the brief OF counsel in behalf of plaintiff
which have before me. the following language
will not in an junction proceeding, try the title
to an office But it is claimed that this is not
proceeding to try or determine the title to an of
hce-that 1t is simply to restrain an unlawful
act. Let US see. Plaintiff claims
that when the vacancy occurred in the
Office of Acknowledgement in July last he, as
President of the Senate. succeeded to the dis
charge of the duties of the Office of Lieutenant
governor of the State of Indiana, and is in pos
session thereof and lawfully entitled to dis
charge the duties of said Office etc.; and alleges
sAkRtw at the general election on the Cd day of
November, 1856 certain persons, falsely pretend
ing that there was vacancy in the office of Lieu
enant-goyernor that could be filled at said cleo
ton. unlawfully procured themselves to be voted
for, for that office etc. And what relief does he
ask from this court9 That the Secretary of
State shall be enioined and prevented from de-
hvering to the Speaker of the House of Repre-
Eentatives the sealed packages containing the re-
turns of said election. And why does he want
shat donel Because, is alleged in the COM
plant, he wants to prevent the General Assem-
bly, from ascertaining who has received the high
est number of votes for Lieutenant
governor at said election. and to pre-
vent the General Assembly from declaring
such person elected as Lieutenant governor,
as to prevent cloud being cast upon plaintiffs
title TO the Office, and to prevent such person
might be so declared elected from entering into
the possession of said office, and from molesting
or interfering with plaintiff in the discharge of
his duties, ETC. But how is it possible for the
court TO decide that ne is entitled to this relief
without first determining that he is legally enti
tied to the Office, and that the person from whom
he asks protection is not!
THE whole theory OF the complaint is that
plaintiff has the right to the Office and that the
persons voted for for that Office at the last cleo
tion have and therefore that plaintiff is en-
&itled to the relief prayed 1t seems clear to me
that the right title of the parties to the Office
is necessarily involved in this suit 1t is thus
sought to have the question of the title to the
H.
In one TO which the party who is to be denied the
Office Is not party. The reasons why this will
never be done are strongly stated in the old case
of the People VS.. Forquer (Breese 104). 1t ap
pears from the opinion in that case that there
was a controversy between Hubbard and Coles
as to which of them was the Governor of the
State of Illinois, and it was sought in proceed
ing brought to obtain maudamus against the
Secretary Of State to have the question decided
in effect by the court as to whether Hubbard or
Coles was the legal Governor The court re-
fused to decide the question, and in the course Of
the opinion sad
Ut is principle of common justice common law
and common sense that person shall be condemned
without being heard that person can be deprived
by courts OF justice of dollars worth of prop
erty without first having been summoned to show
against it. It must be kept in mind that when
this court is called upon to decide who is Gouernor,
the question is longer between the reator and the
Secret-ry OF State, but between Hubbard and Coles
neither of whom strictly parties to this contro.
versyi consequently, neither of them ought to be
affected by the decision in this In this point of
view the remedy in this is entirely misconceiyed
1.-The case of Lawrence VS.. Knight, cited by
counsel, is strongly in point 1t was sought in
that to restrain parliamentary from certi-
flying to the board of return judges election re-
surns which were regular on their face though
averred ana admitted in argument to be forge
RES. And although those returns would give
certificates of election to persons who were not
entitled to Them the court held that il could not
interfere by injunction
There il another well-settled principle of law
with reference to injunctions which think ap-
plies viz That an injunction will never be
granted where the writ will be unavaing. The
Constitution provides that the returns of every
election for Governor and Lieutenant governor
shall be sealed up and transmitted to the seat OF
government, directed to the Speaker of the
House of Representatives but it does not pro-
vide in what manner they shall be transmit
ted. The Legislature. however, has provided