
    William E. Melody, Appellant, v. William W. Goodrich and Others, Justices of the Appellate Division of the Supreme Court in the Second Judicial Department, Respondents.
    
      Taxpayer’s action to enjoin the Appellate Division from appointing a commissioner of jurors under an alleged void statute—the act of appointment fs non-judicial —equity will not try the title to office—statements as to damages, when conclusions
    
    The complaint, in an action brought against the justices of the Appellate Division in the second judicial department, alleged that the plaintiff was a taxpayer of the county of Kings, and also that he had been appointed commissioner of jurors in that county for a term of office which had not expired; that the Legislature, by chapter 602 of the Laws of 1901, had assumed to impose upon the defendants the duty of appointing a commissioner of jurors to succeed the plaintiff, and that they threatened and intended to proceed under such statute; that such statute was unconstitutional, and that if the defendants did proceed thereunder their acts would be void; that great waste and injury would result to the property of the county; that all expenditures made under the statute would be.illegal, and that great and irreparable injury would result to the plaintiff and to the people of Kings county because of such illegal acts, and that the plaintiff would be excluded from his officé and prevented from performing his duties:
    The judgment demanded- was that the statute, so far as it provided for the appointment by the defendants of a commissioner of jurors and the performance of the other duties imposed upon them, be declared unconstitutional and void, and that the defendants might be enjoined and restrained from proceeding thereunder.
    
      Held, that, assuming the duty of appointing the commissioner of jurors to be nonjudicial, the complaint did not state a cause of action;
    
      That it could not be sustained as an action to try the title to office, as courts of equity will not try that question;
    That it could not be maintained as a taxpayer’s action, because the allegations that if the defendants were permitted to proceed under .the statute, great waste and injury would result to the property and funds of the county, and that great and irreparable injury would result to the plaintiff and to the people of the county of Kings, were conclusions merely, and also because the defendants were not the custodians of any of the funds of the county, and that it would not be presumed that, even if the appointment of a commissioner of jurors by them would be void, the disbursing officers of the county would pay any salary to the appointee.
    Appeal by the plaintiff, William E. Melody, from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of' the county of Kings on the 31st day of October, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer to the complaint interposed by certain of the defendants.
    This appeal was transferred from the second department to the third department.
    The complaint in this action was demurred to on the ground that it does not state facts sufficient to constitute a cause of action, and from the judgment sustaining the demurrer this appeal has been taken.
    The complaint alleges that the plaintiff is a taxpayer of Kings county, and contains the usual allegation in a taxpayer’s action in respect to his assessments and payment of taxes in that county. It alleges his appointment as commissioner of jurors on July 10,-1900, for a term which has not expired, his having qualified and entered upon the discharge of his official duties; that he is now engaged in the performance of such duties and is in possession and control of the office and the books belonging to the same ; that on April 29, 1901, the act to provide for the appointment of commissioner of jurors (Laws of 1901, chap. 602) became a law; that the said act in many respects is unconstitutional and void; that the duties imposed upon the justices of the Appellate Division of the Supreme Court of appointing a commissioner of jurors and other duties devolved upon them by the act are in violation of the Constitution; that these defendants, who are justices of the Appellate Division of the Supreme Court in the second judicial department, threaten and intend to proceed, under the act, to appoint to the office of commissioner of jurors in Kings bounty a person to succeed the plaintiff, and that unless restrained by the judgment of this court from doing so, will make a void appointment of a person who will claim to be a commissioner of jurors and seek to exclude this plaintiff from that office, usurp the functions and take possession of the books and papers belonging to the office; that the defendants, or a majority of them, also threaten and intend to fix the salary of the person to be appointed by them and to consent to his .appointing an assistant commissioner, clerks, stenographers and messengers in his office ,and fix their salaries or compensation, and authorize the commissioner to be appointed by them to expend funds and money of the county to procure office room and furnish the same, together with books- and supplies, as a charge against the county; that the said intended and threatened acts would be on the part of the defendants illegal official acts and void; that if the defendants proceed under the act, to appoint a Commissioner, the person appointed under the act and those appointed under the commissioner will attempt to exercise the-powers attempted to be conferred by the act, and great waste and injury will result to the property of the county; that the payment, of all salaries provided by the act and all expenditures would be illegal because made under an unconstitutional act, and great and irreparable injury will result to the plaintiff and to the people of Kings county because of such illegal acts, and the plaintiff would be excluded from his office and prevented from performing his-duties.
    The judgment demanded is that the act, so far as it provides for the appointment by the justices of the Appellate Division of a commissioner, and the other duties imposed upon them by the act, shall be adjudged to be unconstitutional and void, and that the defendants may be enjoined and restrained from appointing a commissioner of jurors under the act, or from doing any other act or taking any other proceeding according to the provisions of the act.
    
      Robert H. Elder and Charles H. Hyde, for the appellant.
    
      John C. Davies, Attorney-General, Frank S. Black and Henry W. Goodrich, for the respondents, Goodrich, Woodward and Hirschberg.
   Edwards, J. :

I do not think- that the appointment of a commissioner of jurors under the statute in question by the justices of the Appellate Division is a judicial act; and, therefore, the • principle that an injunction will not issue against judicial officers to restrain them from the performance of their duties does not apply to this action.

But assuming the duty imposed to be non-judicial, I am of opinion that the facts contained in the complaint are insufficient to maintain an action for an injunction. So far as the action is an attempt of the plaintiff to try his title to office it is clear that it is improper, as it is well settled that courts of equity will not try that question. Nor is the mere fact that the statute in question is unconstitutional a ground for injunctive relief. The plaintiff must go further and must allege facts which show that by the threatened acts of the defendants the funds of the county will be wasted or that lie will suffer irreparable injury in his property rights. (People v. Canal Board, 55 N. Y. 394.) There is an absence of such allegations.

It is true that the plaintiff alleges that if the defendants proceed under the act to appoint a commissioner of jurors, great waste and injury will result to the property and funds of the county, and that great and irreparable injury will result to the plaintiff and to the people of the county of Kings ; but these are conclusions only; no facts are set forth from which they may be deduced, or which show any well-grounded apprehension of such waste or irreparable injury. Injury, material and actual, not fanciful or theoretical, or merely possible, must be shown as the necessary or probable results of the action sought to be restrained.” (People v. Canal Board, supra.)

The defendants are not .the custodians of any of the funds of the county, nor have they the power to disburse such funds, and if their appointment of a commissioner would be void, as alleged by the plaintiff, it is not to be presumed that the disbursing officers of the county would commit the illegal act of paying any salaries or expenses incurred by the appointees. It is not alleged that the fiscal officers of the county threaten or intend to pay such salaries and expenses; nor does the complaint contain allegations of a well-grounded apprehension that they would do se, The court will not indulge the presumption that the disbursing officers of a county will permit what the plaintiff alleges to be illegal acts.

If the act as. alleged in the complaint is unconstitutional, the appointment, by the defendants would be no protection to the auditing and disbursing officers for paying the salaries and expenses. Should any attempt of that kind be made by them, the plaintiff has a perfect remedy against them. As ivas said by the court in People v. Canal Board (supra), “that no injury necessarily results from the action of the canal board is very evident; and it is equally apparent that no injury can possibly result to the state from the action of that body alone, without the concurrence of other facts not averred or proved, and without the action of other officials who it cannot be assumed will do any act affecting the funds of the state, except as authorized by a law constitutionally valid.”

The judgment should be affirmed, with costs.

Parker, P. J., Smith, Chase and Houghton, JJ., concurred.

Judgment affirmed, with costs.  