Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-08

0 lHS NACNAOh nave SOluc DdSh W ~ "
virtue OF such an order, invests it
with the further duty of proclaiming
the result of the election and the es-
tablishmeDt of the port as a munich
J pal corporation. This action of the
county court, although largely min
isterial in its nature is conclusive as
against collateral attack Warner "
Myers. 4 Or. 70; People V. Will, 147
Ill. App. 2O7; Woodland V. State, 1OS
Go. 496; State v. Cooper, 1O1 N. C.
5S4; State ex rel V. Vail, SO Mo. 81;
Gibson V. Twaddle, 81 Pac. 727; Hoy
v. State ex rel, 81 N. E. 5O9.
For all that appears these defend
ants acted in manner and form after
the county court had declared the
election just as commissioners would
have done had the election been in
all respects as required by law.
What, then, is the real question to be
! determined here? 1t is to all intents
and purposes whether or not the de-
PENDANTS properly hold the office of
commissioners of the port. Injunc-
ton will not lie to determine that
question. Iu Biggs V. Mcbride this
court held that mandamus was not
the proper proceeding to try the title
to an office, and the principle there
announced is equally applicable to an
effort in that direction by injunction,
for Injunction is complementary to
mandamus, the one being preventive
and the other affirmative exercise of
the power of the courts. AS illustra-
tive Of the principle that Injunction
is not the proper remedy to try the
title to an office the following cases
will be found instructive Fletcher v.
Tuttle, AZ Am. st. Rep. 220; Arnold V.
Henry, Is Am. st. Rep. $50, 1856 Md.
49,; State ex rel v. Withrow, 154 Mo.
S97; People v. Dist Court, SO Am. st.
Rep. 81, 20 Colo. 277 6S Pac. 224;
Cochran v. McCleary, % la. 75 Cozart
V, Fleming, 81 S. E. S22; Davis v. City
Council, II S. E. 10; In re Sawyer,
124 U. S. 200; Peaple V. Elbert Dist.
Court, 46 Colo. 1; Hotchkiss V. Keck,
"a Neb 545.
To reach the result desired by
tba nIaiptiffs +bo oo,,rt ;c ocI,o5 10
override the exercise of political
power by coordinate branch of the
government in appointing these Off
GERS and, having done so, to go still
further and overturn in this collateral
proceeding the order and proclama-
ton of the county court of Coos coun-
ty, a tribunal specially authorized to
declare the result of an election which i
1t confessedly had the power and au-
thority to order and, finally, to deter
mine that the defendants had no title |
to the positions of commissioners of |
the port.
We do not conceive that the equita-
BILE power of the court extends so far. |
If the plaintiffs would determine the !
title to the positions held by the de-
PENDANTS, recourse can be had to the
remedy provided by section 366, L. o.
L., stating that IAN action at law
may be maintained in the name of the
state, upon the information of the
prosecuting attorney, or upon the re-
lation Of a private parry against the
person offending, in the following
cases: 1. When any person shall
usurp intrude into, or unlawfully
hold, or exercise any public office,
civil or military, or any franchise
within this state, or any office in a
corporation either public or private,
created or formed by or under the
authority of this state; or 3.
When any association or number of
persons act within this state, as cor
poration, without being duly ,incor-
porated, We conclude that the
plaintiffs have a plain, speedy and ad-
equate remedy at law under this sec
ton for the grievances of which they
complain, having which, their suit in
equity in this form will not lie.
We further conclude that as dis
closed by the record here, the de-
PENDANTS were at least de facto COM
missioners of the Port of Coos Bay,
and that their acts are valid so far
as described in the complaint here.
Leach V. People ex rel, 122 Ill. 420
Mer Nat Bank " Mckinney, 2 s. d.
1O6. The mere fact, as disclosed by
the complaint, that the defendants
had passed an ordinance providing for
the issuance of bonds but without
any means for their pay
ment, whether by taxation or other
wise, does not necessarily involve any
right of the plaintiffs. 1t
would be time enough for the plain
tlffs to complain if then when the
defendants shall attempt to levy tax
upon the plaintiffs property for the
payment of such bonds.
These considerations render 1t un-
necessary to go behind the returns of
The election or to inquire whether or