Opinion
No. 32516.
November 30, 1936.
1. OFFICERS.
Equity court held without jurisdiction to try by injunction right to office of county supervisor of either hold-over officer or of newly elected officer who had a certificate of election, regular on its face, and commission therefor, and who had duly qualified (Code 1930, secs. 196, 2881, 3053 et seq.).
2. OFFICERS.
Generally, injunction will not be granted to prevent party from exercising public office pending proceeding to determine his right thereto, but injunction will be granted at instance of incumbent to restrain claimant from interfering with office until he has established his claim to office in direct proceeding to try title.
3. OFFICERS.
Prima facie right of officer armed with election by people, certificate of his election, regular on its face, and commission therefor, after due qualification, is superior to rights of one claiming to hold over into new term on ground of disqualification of newly elected officer, even though it may finally be determined in a contest that the newly elected officer has not been elected, or is ineligible to hold office (Code 1930, sec. 196).
4. OFFICERS.
Newly elected member of board of supervisors did not waive claim to office, as against incumbent holding over on ground that newly elected member was ineligible, by accepting appointment from governor after injunctive writ had been served (Code 1930, secs. 196, 2881).
5. COSTS.
Newly elected member of board of supervisors establishing prima facie right, as against hold-over claimant, held entitled to one hundred fifty dollars for services of attorneys in Supreme Court in preventing or resisting efforts of hold-over claimant to have reinstated in Supreme Court injunction dissolved in lower court; the amount allowed being one-half of reasonable fee allowed by lower court.
APPEAL from the chancery court of Bolivar county. HON. R.E. JACKSON, Chancellor.
Roberts Smith, of Cleveland, for appellant.
By the allegations of the bill of complaint, J.W. Yates showed a continuing prima facie right to occupy the office as against his adverse claimant. This statement is based on the allegations of the bill; first, his possession of the office and his right under the law to hold until his successor is duly qualified, and second, that the said A.G. Summers, the claimant, could not qualify, because he was not a resident freeholder of the district with real estate of the value of three hundred dollars.
The demurrer incorporated in the answer challenged the jurisdiction of the chancery court on the ground that the bill on its face shows that it is an attempt to determine the right of title to public office, alleging that complainant's sole remedy is by quo warranto which can only be instituted in a court of law.
The demurrer admitted all material facts well pleaded in the bill and which would be admissible in evidence, and the legal presumptions arising from the facts well pleaded in the bill.
Griffith's Chancery Practice, sec. 288.
The only question of right that can be judged in this cause is the right pleaded in the bills of complaint filed in this proceeding, which we submit constitute a continuing prima facie right in the said J.W. Yates to occupy the office as against his adverse claimant.
It is a general rule of law that an injunction will not be granted to prevent a party from exercising a public office pending proceedings to determine his right thereto. On the other hand an injunction will be granted at the instance of an incumbent of office to restrain a claimant from interfering therewith until he has established his claim to the office in direct proceedings to try title.
46 C.J. 1008, sec. 215.
The principle is well established that courts of equity will by injunctive process protect the incumbent of an office who shows a prima facie right to continue in office, against the intrusion of adverse claimants out of possession who are without right or title to the office or whose title is not yet established.
Casey v. Brice, 55 So. 810; 2 High on Injunctions (2 Ed.), par. 1315; 5 Pom. Eq. Jur. 335; Wright v. Cook, 113 So. 252; Doughty v. Bryant, 145 So. 420.
In the case at bar the bill avers that the adversary claimant was ineligible to hold the office and could not qualify and we submit that the averments of the bill do sustain the equity of the bill.
Wood v. Miller, 242 S.W. 573.
It has come to be well settled that an incumbent of a public office may employ the remedy by injunction to protect his possession against the interference of an adverse claimant, whose title is in dispute, until the latter shall establish his title by law.
State ex rel. Garrison v. Brough, 113 N.E. 683; Casey v. Brice, 55 So. 810.
There is an adversary claim between the said J.W. Yates, the legal officer in actual possession of the office, and the said Summers, based on Summers' ineligibility and his inability to qualify. If the said Summers lacked the property qualification, required by the statute, which is charged in the bill and admitted by the demurrer, then he could not truthfully take the oath of office and could not qualify so as to have conferred upon him a prima facie title to the office.
A person shall not be a member of the board of supervisors who is not a resident freeholder in the district for which he is chosen, and the owner of real estate of the value of three hundred dollars.
Section 196, Code of 1930.
The case of Guillotte v. Poincy, 6 So. 507, is a case upholding the general principle which we contend is applicable to the case at bar, and in which the facts are strikingly similar to the facts in the case at bar.
The general principle of protection of a public officer in actual possession of an office by injunctive process until the adverse claimant shall establish his right by judicial proceeding provided by law is of such general application that to cite all the text writers and cases would unnecessarily prolong the discussion, hence we refer the court to only a few further citations:
22 R.C.L. 113, page 454; State v. Superior Court, 17 Wn. 12, 48 P. 741, 61 A.S.R. 893; Black v. Lambert, 235 S.W. 704; State v. Bratton, 253 S.W. 705; School Dist. No. 47 of Waseca County v. Wesie, 79 N.W. 668; Hardy v. Reamer, 66 S.W. 678.
We submit that we have examined the cases below listed and find that each case is an approval of the principle that a court of chancery or equity will protect the incumbent of an office holding under color of right or who shows a prima facie right to continue in the office, by injunctive process.
Cutten v. McCarthy, 118 P. 233; Barendt v. McCarthy, 118 P. 228; Felker v. Caldwell, 123 N.E. 794; Huntington v. Cast, 48 N.E. 1025; Goin v. Smith, 260 S.W. 10; Hollar v. Cornet, 138 S.W. 298; Beck v. Kerdan, 183 N.W. 742; Blain v. Judge Chippewa Cir. Ct., 108 N.W. 440; Strenglein v. Judge Saginaw Cir. Ct., 87 N.W. 449; Gaudalupe County v. Anaya, 242 P. 335; Armijo v. Baca, 6 P. 938; State v. Brough, 113 N.E. 683; Reemelen v. Mosby, 26 N.E. 717; Allison v. Massey, 235 P. 192; Walker v. Hopping, 226 S.W. 146; Young v. Dudney, 140 S.W. 802; Ehlinger v. Rankin, 29 S.W. 240; Brown v. Rock, 133 A. 245.
Section 176 of the Constitution of Mississippi provides that no person shall be a member of the board of supervisors who is not a resident freeholder in the district for which he is chosen. The value of the real estate necessary to be owned to qualify persons in the several counties to be members of said board shall be fixed by law.
The bills of complaint aver that the said A.G. Sumners is not a resident freeholder and cannot qualify. Whether he is or not is a matter of proof which could be made at a hearing on the merits or in a proper proceeding for the judicial determination of title. The bills of complaint were demurred to and dismissed on motion to dissolve the injunction. The averments properly pleaded were admitted by the demurrer. We submit that the averment as to eligibility of the said A.G. Summers was well pleaded. The averments of the bills as to eligibility are strengthened by the positive terms of the section of the Constitution and the statute covering this proposition.
The authority given by statute to an officer to hold over until a successor is duly elected and qualified is just as much a right in the incumbent as is that part of the statute which fixes the definite period.
State v. Hays, 45 So. 728, 91 Miss. 765; Berry v. Berry, 144 So. 695, 165 Miss. 472.
It is averred in the supplemental bill filed by J.W. Yates, that after A.G. Summers had been enjoined from interfering with the incumbent, Yates, in the discharge of his duties in the office of supervisor of Bolivar County for the third district, he reported to the Governor that a vacancy existed in said office and sought and secured appointment to fill such vacancy until a successor is duly elected and qualified, and acting upon such appointment, by telegram, the said Summers attempted to qualify by filing a new bond and an oath of office. What are the legal results of his acts in this respect? Did he not waive any rights he had under the election?
A waiver is defined as an intentional relinquishment of a known right.
27 R.C.L. 904 (2); Attorney General v. Maybury, 141 Mich. 31, 113 A.S.R. 516.
His acts and conduct with reference to the question of vacancy and acceptance of an appointment to fill same conclusively lead to one of two conclusions: first, an intention to abandon his rights under the election; second, a purpose to circumvent the injunctive process and to seize the office. If the first, then he waived his rights under the election, and if the second, he evinced a purpose to thwart the process of the court.
We submit that the present proceedings is not a suit to try title to public office; not a suit to contest an election, nor an attack on the certificate of election and the commission issued on such certificate, but is a proceeding to protect a lawful incumbent in his possession of the office until the title to the office is determined by proper judicial proceedings.
Wilkins v. Large, 141 So. 585.
It has been said that the holder of a certificate of election who has duly qualified is prima facie entitled to the office when his term begins, as against every one except a de facto officer in possession under color of authority.
22 R.C.L. 437, sec. 90.
Many of the courts of our land denominate a hold over officer as a de facto officer.
22 R.C.L. page 591, sec. 312, and page 598, sec. 320.
In the light of the above principles from 22 R.C.L. and the decisions of our own courts as to the rights of a hold over officer, we conclude that the prima facie right of appellee, based on the certificate of election, the commission of the Governor, and his acts in attempting to qualify by filing bond and oath of office will not entitle him to the possession of the office when his term begins, as against the appellant, J.W. Yates, a de facto officer in possession under color of authority and with his legal right to contest the claim of appellee.
Sillers Roberts, of Rosedale, for appellee.
The general rule of law is that a chancery court does not have jurisdiction to prevent a party from exercising a public office. There is an exception to this rule, however, and where a party is in possession of an office and has the prima facie title and right to occupy it, he has a right to resort to a court of chancery for an injunction to protect his possession and occupancy of the office.
46 C.J. 1007.
This rule is conceded by appellant and he attempts to come within the exception to the rule. The sole question presented on this state of the case for determination by this Honorable Court is: Has the chancery court jurisdiction to grant the writ of injunction and keep appellant, the prior incumbent, in possession of the office, and prevent the appellee, the holder of a certificate of election and commission, from taking possession of said office and exercising the functions thereof, or, stating the question in another way, has the chancery court jurisdiction and power to grant a writ of injunction, the effect of which is to hold the appellant in possession of the office with the right to discharge the duties thereof as against the appellee's right and title thereto, regardless of appellee's eligibility or ineligibility, until the appellant has established his right to title and possession of said office by proper proceedings in a court having jurisdiction to determine and adjudicate such right.
We have two claimants asserting title to, and right to possession of, public office. Therefore, to answer the question presented we must determine: (a) What is the proper proceeding, and in what court, to try and adjudicate title to public office, and (b) which of two claimants is entitled to possession of a public office, the title to which is in dispute, in the absence of legal adjudication of title in proper proceedings by a court vested with jurisdiction to try title to office?
Answering inquiry (a), it is well settled in Mississippi that the sole and only proceeding in which title to public office may be adjudicated is by information in the nature of a quo warranto, and that exclusive jurisdiction of such proceeding is vested in the circuit court.
Sections 3053 and 3054, Code of 1930; Town of Sumner v. Henderson, 116 Miss. 64, 76 So. 829.
Answering inquiry (b), it is well settled by the great weight of authority that of two claimants asserting the right to possession of a public office, the one possessing the prima facie title or right is entitled to possession in the absence of, or pending, adjudication of title by a court vested with jurisdiction to try the right of title to office, and this is true even though the party awarded possession of the office may ultimately be declared, by a court of competent jurisdiction, to be ineligible to hold the office.
22 R.C.L. 436, sec. 90; Taylor v. Beckham, 49 L.R.A. 258, 178 U.S. 548, 44 U.S. (L.Ed.) 1187; 46 C.J. 1007, sec. 214; Plowman v. Thornton, 52 Ala. 559; Moulton v. Reed, 54 Ala. 320; Casey v. Brice, 55 So. 810; Wamsley v. O'Hara, 161 So. 587; Stevens v. Carter, 31 L.R.A. 342; State ex rel. Lamar v. Johnson, 31 L.R.A. 357; DeShazo v. Davis, 81 A.L.R. 617.
Even if it be conceded for the sake of argument that appellee was disqualified to hold the office (when as a matter of fact he was qualified) he held the certificate of election and commission of office and was entitled to possession of the office until a court of competent jurisdiction should declare the certificate and commission void.
The holder of the prima facie title or right being entitled to possession of the office, which of the claimants in the instant case, appellant, Yates, or appellee, Summers, is the holder of the prima facie title or right to the office involved in this suit?
There can be but one answer, appellee, Summers, the holder of the certificate of election and commission from the Governor, is the possessor of the prima facie title or right as against the hold-over claimant, and having qualified by filing bond and taking oath as required by law, is entitled to the possession of the office, until and unless the appellant in a proper proceeding by information in the nature of a quo warranto in the circuit court overthrows that prima facie title or right and establishes his claim to the office.
Dillon Municipal Corp., sec. 1554, page 2732; Myers v. Chalmers, 60 Miss. 772; Witherspoon v. State, 138 Miss. 310, 103 So. 139; Casey v. Brice, 55 So. 810; Wamsley v. O'Hara, 161 So. 587; Stevens v. Carter, 31 L.R.A. 342; State ex rel. Lamar v. Johnson, 31 L.R.A. 370; DeShazo v. Davis, 81 A.L.R. 614.
If it be conceded (which we do not concede but vigorously deny) that the facts alleged in the supplemental bill showed intentional abandonment by the appellee, yet such cannot be availed of to make a cause for relief when none existed at the time the original bill was filed because said allegations constitute an entirely new cause of action based upon facts not in existence at the time the original bill was filed and injunction issued, but which occurred thereafter, and such procedure is contrary to the well established rule announced by the great weight of authority.
Griffith's Chancery Practice, sections 412, 413 and 415; Brooks v. Kelly, 63 Miss. 616; 32 C.J. 345; 21 C.J. 526 and 542.
Appellee is in legal possession of the office, and for the purpose of this suit his title has been established by the only judicial tribunal authorized by law so to do, viz., the election commissioners of Bolivar county. Their acts are quasi judicial, are conclusive, and must stand until overthrown by a court of competent jurisdiction in a proper proceeding instituted for that purpose.
Ruhr v. Cowan, 146 Miss. 870, 112 So. 386.
Jurisdiction may be tested by a plea in abatement or by a demurrer.
Griffith's Chancery Practice, sec. 292, page 291, and sections 328, 332, and 333.
Argued orally by Walter Sillers and W.C. Roberts, for appellee.
On the 3d day of January, 1936, the appellant, J.W. Yates, without notice to the appellee, procured from the chancellor of his district, on a bill in equity, a fiat of injunction against the appellee, A.G. Summers. The bill was filed in the chancery court of Bolivar county on January 5th, and on that day the temporary injunction was served upon the appellee.
The bill alleged that Yates was elected at the general election held in November, 1931, as a member of the board of supervisors from the third district of Bolivar county for a term beginning on the first Monday in January, 1932, and extending for a period of four years, and until his successor was duly elected and qualified, and that he was then serving as said supervisor. It further alleged that A.G. Summers was a candidate for supervisor from the third supervisor's district, and received a majority of the votes cast in the general election held on November 5, 1935; that Summers was ineligible to hold said office of supervisor, for the reason that at the time of said election he was not a resident freeholder in the district for which he was chosen and did not then and there own real estate of the value of three hundred dollars, and did not at the time of the filing of the bill own real estate of said value. The bill further alleged that no other person had been elected to said office; that no other person had qualified or attempted to qualify to hold said office; and that no other person claimed said office.
The appellant further charged that he was entitled to hold the office then occupied by him as supervisor for the full term of four years and until his successor should be duly qualified; that by reason of the fact that Summers was not a resident freeholder in said district at the time of his election on the 5th day of November, 1935, and has not since owned real estate, he (Summers) was, therefore, ineligible to succeed appellant as supervisor; that the office of supervisor was a valuable right; that it was his duty to hold over at the expiration of his four year term until his successor had qualified; and that he was entitled to so hold over. He alleged that Summers had filed his bond as supervisor and had taken the oath of office with the clerk of the chancery court in an effort to qualify for said office; that on the 6th day of January, 1936, or the first Monday of said month, he would assume the duties of said office, and that the appellant would thereby be ousted from the office of supervisor and from his right to so hold over and would thereby suffer irreparable injury and lose the emoluments of the office; and that an injunction would not damage Summers because he had a plain, open, and adequate remedy to test the title to the office.
The appellant prayed for an injunction restraining Summers from making any interference with the complainant in the exercise of his duties as a member of the board of supervisors, and for an order restraining Summers from interfering with complainant in the performance of any of the functions of said office of supervisor, and from performing, or attempting to perform, any of the duties of said office until said Summers had established his claim to the office by judicial proceedings as provided by law.
On February 10, 1936, Summers appeared and answered the bill. He admitted that Yates had been elected supervisor for the third district in November, 1931, at the general election; that he qualified and entered upon the duties of his office, and that his term of office expired at 12 o'clock p.m. on the 5th day, before the first Monday, being the 6th day, of January, 1936. He states that he was duly elected on November 5, 1935, to the office of supervisor of the third district, receiving a majority of the votes cast, and that he has qualified to discharge the duties of that office by giving bond and taking the oath. He denied that he was not a resident freeholder of the district from which he was elected, and averred that he owned real estate in the district of the value of three hundred dollars at the time of the election and at all times thereafter. He exhibited the certificate of election issued to him on the 8th day of November, 1935, and also the commission to the office of supervisor for the Third supervisor's district of said county, dated the 31st of December, 1935. He affirmed that he was qualified in all respects to hold the said office, and denied that on and after the 6th day of January, 1936, the appellant had any right or title to said office.
By way of demurrer the appellee challenged the jurisdiction of the chancery court to determine the right or title to public office, and to restrain him by injunction from going into office, because the appellant had an adequate and exclusive remedy at law by quo warranto proceedings. On the same day, the appellee filed a suggestion of damages and a motion to dissolve the injunction on the ground that the bill showed on its face that he was prima facie entitled to the office to which he had been elected.
By permission of the court a supplemental bill was filed by the appellant, in which he charged that on the 6th day of January, 1936, appellee had presented to the board of supervisors a telegram from the Governor of the state appointing him a member of the board of supervisors to fill a vacancy existing in that office, and that he filed an additional bond and undertook to qualify under said appointment. He further charged that the acceptance of this appointment from the Governor was a waiver of appellee's right to claim the benefits of the general election, or a certificate thereunder, or his commission issued by the Governor in pursuance of said election.
On the hearing of the motion to dissolve the injunction the court below sustained the demurrer to the bill and supplemental bill, dissolved the injunction, and allowed attorneys' fees as damages, as well as other damages.
The record in this case does not disclose that quo warranto proceedings have ever been instituted by either of the contenders for the title to and possession of this office. It is undisputed that Summers was duly elected at the general election held on November 5, 1935. It is conceded that in pursuance of said election the constituted authorities issued to him a certificate of election; that the Governor issued to him a commission; and that prior to the issuance of the injunction Summers had given bond and taken the oath of office as Supervisor of the third district of Bolivar county.
It will be observed that on the date the injunction was granted in this case, and on the date the bill was actually filed, neither of the parties were yet in possession of the office for the new term beginning January 6, 1936. The precise question presented here is: Which of the two contenders for this office was entitled to go into office at the beginning of the new term, pending a quo warranto proceeding to determine the right and title to the office in question? The appellant predicates his rights herein as a hold-over officer under section 2881, Code 1930.
Early in the jurisprudence of this state, a chancellor declared that the legality of an election for trustees could not be investigated in a chancery court by means of an injunction; that this could only be done by information in the nature of a quo warranto, regularly prosecuted before the proper tribunal. Moore v. Caldwell, Freeman Ch. 222. In Town of Sumner v. Henderson, 116 Miss. 64, 76 So. 829, this court said: "This suit is an attempt by injunction to try the right and title to the offices of these defendants who are exercising the duties of these offices. The proper remedy is by quo warranto, not by injunction. . . . The rule is thus stated in Pomeroy's Eq. Jur. vol. 5, sec. 333: `It is a principle of universal application that an injunction will not issue when its object is to try title to public office.' . . . The appointment of these defendants by the Governor, whether legal or illegal, and the performance by them of the duties constitute them de facto officers at least. Adams v. Bank, 75 Miss. 701, 23 So. 395."
Dillon's Municipal Corporations (5 Ed.), sec. 1554, p. 2731, states: "The certificate of election of an officer, or his commission, coming from the proper source, is prima facie evidence in favor of the holder; and in every proceeding, except a direct one to try the title of such holder, it is conclusive."
In the case of Myers v. Chalmers, 60 Miss. 772, where there was an effort to mandamus the secretary of state, and where a commission had been issued by the Governor, this court said, referring to the commission: "It must stand until vacated and annulled by a body which has the right to investigate the facts of the election, and decide who is entitled to the office."
In the case of Witherspoon v. State ex rel. West, 138 Miss. 310, 103 So. 134, 139, we said: "The appellant's commission is prima facie evidence that he was regularly appointed and confirmed by the Senate, and, if his commission were the only evidence which the court below had before it of his appointment and confirmation, he would have been entitled there and would be here to a judgment in his favor." For other authorities, see Casey v. Bryce, 173 Ala. 129, 55 So. 810; Wamsley v. O'Hara, 182 La. 213, 161 So. 587; Stevens v. Carter, 27 Or. 553, 40 P. 1074, 31 L.R.A. 342; State ex rel. Lamar, Atty. Gen., v. Johnson, 35 Fla. 2, 16 So. 786, 31 L.R.A. 357, and De Shazo v. Davis, 157 Va. 517, 162 S.E. 320, 81 A.L.R. 614. The rule is more strongly stated in 46 C.J. p. 1007, sec. 214.
Appellant's claim is based upon the assertion that under section 196, Code 1930, he has the prima facie right to hold over after the expiration of his term, because he has charged that Summers is ineligible to hold the office. That section reads as follows: "A person shall not be a member of the board of supervisors who is not a resident freeholder in the district for which he is chosen, and the owner of real estate of the value of three hundred dollars." The appellant further asserts that the decisions of this court in various quo warranto proceedings demonstrate that he had the right to hold over, and therefore was the prima facie, or de facto, officer. The cases relied on principally are Wilkins v. Large, 163 Miss. 279, 141 So. 585; Andrews v. State ex rel. Covington, 69 Miss. 740, 13 So. 853; Roane, Dist. Atty., ex rel. Tunstall v. Matthews, 75 Miss. 94, 21 So. 665; and Burnham v. Sumner, 50 Miss. 517, which hold to the effect that one holding over, where so authorized by the Legislature, could contest the eligibility of the party elected as his successor. In Roane ex rel. Tunstall v. Matthews, Tunstall was the hold-over contestant and Matthews was the elected official. Matthews went into office and Tunstall brought his action in quo warranto. The court there held that the hold-over officer was entitled to hold the office from the date of the beginning of the new term. These cases all arose by quo warranto in a law court.
It is true that an equity court has no jurisdiction to try by injunction the right to office of either of the parties to this litigation. The rule as to when a remedy by injunction is applicable is stated in 46 C.J., p. 1007, 1008, sec. 215, a part of which is as follows: "It is a general rule of law that an injunction will not be granted to prevent a party from exercising a public office pending proceedings to determine his right thereto. The rule is applied as well where the petition is made by the attorney of the state, as where the application is made by a private citizen. On the other hand an injunction will be granted at the instance of an incumbent of office to restrain a claimant for the office from interfering therewith until he has established his claim to the office in direct proceedings to try title. . . . The incumbent of an office, in order to obtain relief against interference therewith by a claimant, must show that he has possession of, and the prima facie right to occupy, the office, or must prima facie show that there is no other person authorized by law to hold the office." Also see section 1758, vol. 4, Pomeroy's Eq. Jur. (4 Ed.). In this state chapter 59 of the Code of 1930 (section 3052 et seq.) provides the method for trial of the right or title to office by quo warranto and vests the jurisdiction thereof in the circuit court.
Appellant cites us to many cases in direct proceedings which hold that a hold-over officer may contest with a claimant to the office the right or title thereto, and if successful he is adjudged to be entitled to the office from the moment of the inception of the hold-over term. These cases do not undertake to settle the prima facie right to office, but generally speaking, on these trials the prima facie case was overcome by the facts.
Appellee most strongly relies upon statments found in Wood v. Miller, 154 Ark. 318, 242 S.W. 573; Guillotte v. Poincy, 41 La. Ann. 333, 6 So. 507, 5 L.R.A. 403; Casey v. Bryce, 173 Ala. 129, 55 So. 810, 811; Wright v. Cook, 216 Ala. 270, 113 So. 252; and Doughty v. Bryant, 226 Ala. 23, 145 So. 420. The case of Wood v. Miller was a direct proceeding to try the title to the office and was based upon the statutes of that state. The jurisdiction of equity by way of injunction was not involved. Guillotte v. Poincy held that an injunction was proper on behalf of an incumbent rightfully in possession as against a claimant out of possession, in order to protect the incumbent until the title to the office was settled. Under the Louisiana statutes the incumbent was held to be a de facto officer in possession of the effice. There the incumbent was not shown to be a hold-over official. In Wright v. Cook, the Alabama court held that the complainants, Cook and others, were prima facie in office, with the right to continue therein, in the midst of their terms which had not expired, and that they were entitled to injunctive protection as against claimants who attempted under those circumstances to oust them. In the Doughty case injunctive relief was denied the hold-over official who had been defeated by the claimant in the election, and who sought to hold over on the ground that his antagonist was elected at a void election. The Casey case is almost on all fours with the case at bar. Casey was the hold-over officer under a statute like ours. Bryce was elected and received the certificate of election and the commission. There the court held that Casey as the hold-over officer was not entitled to injunctive protection because Bryce had prima facie right and title to the office pending a settlement of the title thereto in the proper court. The court said: "The bill of complaint, thus viewed, presents a singular and sinister aspect. It proposes, not that the chancery court shall consider or determine the merits of the pending contest, but that, so long as that contest remains undetermined, the complainant shall be allowed to occupy the office and harvest its perquisites to his own use. And it asks the mandatory aid of a court of chancery to keep in office one whose lawful term has expired, and to keep out one who has been duly elected thereto and commissioned therefor; in other words, to halt him upon the threshold, and command him to wait until the claims of his competitor, a stranger to complainant, have been disproved. There is not, and cannot be, any such right in an outgoing public officer, and we are cited to no principle of law that even tends to support the proposition."
In line with the announcement of the general rule, the prima facie right of an officer armed with an election by the people, a certificate of his election, regular on its face, and the commission therefor, and who has duly qualified, seems to be quite universal as against one who desires or claims to hold over into the new term under statutes similar to ours, even though it may finally be determined in a contest that he has not been elected or is ineligible to hold the office. An illuminating case in point is De Shazo v. Davis, 157 Va. 517, 162 S.E. 320, 81 A.L.R. 614, and notes. In that case De Shazo, the newly elected officer, was installed in the office by mandamus at the beginning of his term as against the hold-over incumbent, pending a contest involving the title to the office.
Under the allegations of the bill in the case at bar Summers was prima facie entitled to the office and to function with all the insignia and emoluments unless and until he should be ousted by a court of competent jurisdiction. This is essential to an orderly administration of our form of government in this state.
In the general election in 1935 four hundred and ten supervisors in the eighty-two counties of the state were elected. Suppose the incumbents should conclude to hold over into a new term, although not elected and having no claim thereto save the statutory right to hold over and allege in a bill for injunction that their elected successors were not eligible because they did not own real estate of the value of three hundred dollars, and on that allegation procure a temporary injunction on the eve of the new term. The will of the people would be thwarted, the hold-over officer would participate in the election of subordinate employees of the board, and might determine the policy of the board against the will of the people. The procedure adopted by appellant would permit him to create a vacancy, declare himself entitled to continue to hold the office, and force the prima facie officer to litigate with him. If this were upheld, every officer elected by the people would remain uncertain as to his status until he had actually taken possession of the office.
The rule was well stated in the case of Stevens v. Carter, 27 Or. 553, 40 P. 1074, 1076, 31 L.R.A. 342: "To allow an incumbent to hold over and retain possession of an office after the close of his term, when a certificate of election has been issued to another, who has duly qualified, because, perchance, the incumbent may think his successor is ineligible, or has been duly elected, would thwart the popular will, as expressed by the majority at the election, and tend to make the incumbent the judge of his own rights, as well as of the eligibility, election, and qualification of his successor. State ex rel. Jones v. Oates, 86 Wis. 634, 57 N.W. 296 [39 Am. St. Rep. 912]. The electors having expressed their preference at the polls, it is better that the person chosen by their votes, having obtained the certificate of election, and qualified, should be inducted into office, and the burden of proving the ineligibility and want of election or qualification cast on the prior incumbent, than that his successor should be deprived of his office until he could show himself eligible thereto."
Summers did not waive his claim by accepting an appointment from the Governor after this injunctive writ was served upon him. Turnipseed v. Hudson, 50 Miss. 429, 19 Am. Rep. 15.
Appellee, by motion, asked for an allowance of attorneys' fees for services of his attorneys in the Supreme Court in preventing or resisting the effort of appellant to have reinstated in this court an injunction dissolved in the lower court. It has long been our custom under such circumstances and in such cases to allow one-half of the fee allowed in the lower court when the fee fixed below is reasonable and proper. In this case we adhere to our rule as expressed in Mims v. Swindle, 124 Miss. 686, 87 So. 151, and specifically authorized in Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596. Three hundred dollars was allowed by the lower court, one hundred fifty dollars is allowed in this court, as attorneys' fees for defending this appeal.
We find no error in the action of the court below.
Affirmed.