
    The State ex rel. Ellis, Attorney General, v. The Board of Deputy State Supervisors of Cuyahoga County et al.
    
      Supreme court without original jurisdiction of suits for injunction — Out in quo warranto suit may grant ancillary injunction, when.
    
    This court, though without original jurisdiction of suits for injunctions, may, in an original action in quo warranto to determine the right of rival boards to exercise official functions, grant an ancillary injunction to protect those having the prima facie right from interference by other claimants during the pendency of such original action.
    (No. 8993
    Decided June 21, 1904.)
    In Quo Warranto.
    The case is stated in the opinion.
    
      Mr. Wade H. Ellis, attorney general, for plaintiff.
    The power to issue restraining orders in aid of its original jurisdiction, is inherent in the Supreme Court.
    Section 2 of the judicial article of the constitution of Ohio gives to the Supreme Court original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo. Our contention is that in any case coming into the Supreme Court originally, this court has the inherent power to issue restraining orders, to make effectual the exercise of its original jurisdiction. Works on Courts and their Jurisdiction, page 171; Elliott on Appellate Procedure, sec. 45.
    Now it is true that the Supreme Court of this state by section 5573, of the Revised Statutes, is given jurisdiction in injunction in all causes pendving in the court, and it is also true that this must apply only to appellate jurisdiction, for the reason that the original jurisdiction granted by the constitution cannot be enlarged by the legislature. Griffith v. Commissioners of Crawford Co., 20. Ohio, 609; Kent v. Mahaffy, 2 Ohio St., 498; Railroad Co. v. Hurd et al., 17 Ohio St., 144; Yeoman et al. v. Lasley et al., 36 Ohio St., 416; Wagner v. Railroad Co., 38 Ohio St., 32.
    But it is equally true that the statutory grant of jurisdiction in injunction as an aid to jurisdiction in other actions is wholly unnecessary since, as Elliott points out in section 45, cited above, the Supreme Court has the inherent power to issue writs of injunction in aid of its appellate jurisdiction.
    It is true that the Supreme Court has no original jurisdiction in injunction (Wheeler v. Treasurer, 8 Ohio St., 394), but it does not follow that the court is without power to restrain litigants from rendering ineffective its jurisdiction in quo warranto. The right to preserve an existing status until a case can be heard and determined upon its merits is an incidental and necessary part of the right to hear and determine the case.
    This court has pointed out on several occasions the difference between the statutory and constitutional jurisdiction of courts and their inherent powers. Hale v. The State, 55 Ohio St., 213.
    Courts have uniformly protected incumbents in office pending the final determination of proceedings in quo warranto.
    
    The great majority of cases in which courts have refused to issue restraining orders where quo war
      
      ranto proceedings were pending to determine the title to a public office, have been decided upon the theory that to grant such summary relief would he to decide the case in advance and, in effect, to substitute the improper remedy of injunction for the proper remedy of quo warranto. It is elementary that injunction cannot he invoked to try title to office, and that the only appropriate action is quo warranto. Manifestly, therefore, courts will refuse to evade this well-known principle by issuing an injunction during the pendency of an action in quo warranto. To this effect are all the numerous authorities upon the subject. High on Injunctions, pt. 2, sec. 617; 1 Spelling on Extraordinary Relief, sec. 620; Beach on Injunctions, sec. 1381; People v. Draper, 24 Barb., 265; State v. Durkee et al., 12 Kan., 308; Markle v. Wright, 13 Ind., 548; Hartt et al. v. Harvey et al., 32 Barb., 55; Cochran v. McCleary, 22 Ia., 75; Tappen v. Gray, 9 Paige, 509; Beebe v. Robinson, 52 Ala., 66; Updegraff et al. v. Crans, 47 Pa. St., 103; Harding v. Eichinger, 57 Ohio St., 371.
    But out of this rule that courts before whom a quo warranto proceeding is pending will not disturb incumbents in the office which is the subject of the controversy has grown the further rule that such courts will protect by injunction such incumbents pending the final determination of the action in quo warranto. The authorities to this effect are numerous and the principle is firmly established and widely recognized. 2 High on Injunctions, sec. 1315; 2 Beach on Injunctions, see. 1380; 1 Spelling on Extraordinary Relief, sec. 622; Harding v. Eichinger, 57 Ohio St., 374; Reemelin et al. v. Mosby, 47 Ohio St., 570; Kerr v. Trego, 47 Pa. St., 292; Guilotte v. Poincy, 6 So. Rep., 507; Ewing v. Thompson, 43 Pa. St., 372; Tappen v. Gray, 2 Edw. (N. Y.), 450; Goldman v. Gillespie, 43 La. An., 83; Brady v. Sweetland, 13 Kan., 41; State v. Judge, etc., 8 So. Rep., 883.
    The order sought by this motion merely preserves, the existing status of affairs until the final determination of the action in quo warranto.
    
    Where important public interests are involved courts'have uniformly granted injunctions in aid of their jurisdiction in quo warranto. 1 Spelling on Extraordinary Relief, sec. 620; Commonwealth v. Dearborn, 15 Mass., 125; State v. Durkee, 12 Kan., 308; Kerr v. Trego, 47 Pa. St., 292; Appeal of Town Council, (Pa.) 15 A., 730; State v. Wolfenden, 74 N. C., 103; Dishon v. Smith, 10 Ia., 212; Ewing v. Thompson, 43 Pa. St., 372.
    ' This court has frequently exercised its inherent, p'owers in aid of the original jurisdiction conferred by the constitution. State ex rel. Attorney General v. Pollner et al., No. 8636; State ex rel. v. Spellmire et al., 67 Ohio St., 77; State ex rel. Attorney General v. Beacom et al., 66 Ohio St., 491.
    We submit that the power of this court to issue a. temporary restraining order when necessary to the continued performance of the functions of a public office, during the pendency of an action in quo warranto, brought to determine who shall perform those functions, is a part of its jurisdiction in quo id arrant o, as fully conferred by the constitution as if it were expressed in that instrument.
    
      Mr. Harry F. Payer, for Gongwer and Coughlin.
    
      
      Messrs^ Blandin, Bice S Ginn, for the members of the city board of elections.
   Shatjck, J.

The pleadings inform us that on the-second day of May, 1904, the state supervisor and inspector of elections, pursuant to the provisions of the-act of April 23, 1904, appointed the defendants. Gfentschj Hopkins, Fitzgerald, and Christian as members of the board of deputy state supervisors and inspectors of elections in and for the county of Cuyahoga ; that said persons duly qualified as members .of said board and organized, as required by law, and that they thereupon demanded the ballot boxes and other property used in the conduct of elections, from, the other defendants (except Coughlin and Grongwer), who refused to deliver said property, claiming-the. right to the continued possession thereof by reason of their previous appointments, some of them as members of the board of deputy state supervisors of said county and some of them as members, of the city board of elections of the city of Cleveland, in said county, the statutes under which said previous boards had been constituted having been repealed by said act of April 23, 1904. The prayer of the petition is that the defendants other than those appointed under the recent act be ousted from the asserted right to perform said functions. It is. further made to appear that before the cause can be put at issue, heard and determined upon its merits, it will be necessary that action be taken for the holding of popular elections in said county. It also appears that the members of the former boards assert, a right to continue in office and to retain possession of said property, upon the ground that the act of April 23, 1904, is unconstitutional, and its repealing section, therefore, ineffectual. The defendants Coughlin and Gongwer claim a right to be appointed as members of the board created by the act of April 23, 1904, instead of Fitzgerald and Gentsch, who were appointed by the state supervisor and inspector of elections.

The case is not now prepared for submission upon its merits, but we are called upon to determine who shall exercise the official functions which public interests require to be performed, pending the determination of the cause upon its merits. The attorney general invokes that action by a motion for an order enjoining the members of former boards from interfering with the members of the board appointed under the act of April 23, 1904, and from withholding said property from their possession. It is obvious that the public interests require that some board shall exercise these controverted functions, and every consideration of propriety tends to the conclusion that the validity of the later act should be assumed until after hearing and consideration it is found to be invalid.

The text books and numerous adjudicated cases have made common knowledge of the rule that in actions in quo warranto against an incumbent to try title to an office, the court will not enjoin the incumbent from the exercise of the functions of the office pending the determination of the question of title. This is for reasons of obvious and conclusive force. The public interests require that the functions of the office be performed by some one, and to transfer their performance from the incumbent to the contestant would deny effect to the prima facie title of the former and anticipate the conclusion of the court in quo warranto, that, and not injunction, being the proper suit for testing the question of title. But attention to the precise nature of the present case will show that while those considerations are applicable here, they favor the opposite conclusion. We have no controversy as to the title to any office except as to two of the defendants, and they claim to be entitled to an office from which they are now excluded. The case calls upon us to determine which is the existing office. The act of April 23,1904, assuming its validity, abolishes the former hoards and vests the functions of both in the single board in whose favor the restraining order is sought. It is not denied that the defendants, members of the former hoards, are entitled to hold the offices to which they were appointed, if the offices continue to exist; and it is conceded that the defendants who were appointed under the act of April 23,1904, are the only persons in the office which it creates. The public interests require that these functions he performed, and to say that they should not he performed by those who were appointed under the recent act would deny effect to their prima facie title and anticipate the conclusion that the act is invalid. The action which the motion invokes is, therefore, not an interference with the performance of official duty by those who have the right prima facie, hut it is for their protection in that performance from interference by rival claimants of the authority, whose right is yet to be made apparent. That the courts will afford such protection to an officer having the apparent title is shown by numerous decisions of this court and others, which are cited in the brief of the attorney general.

■ It is urged that we are without authority to make-the order which the motion contemplates. The present action is a resort to our original jurisdiction. That we have not original jurisdiction of suits for injunctions is entirely clear. If the language of section 5573, Revised Statutes, should be thought appropriate to confer it, the effect to be given to that section would, nevertheless, be indicated by section two of article four of the constitution, which ordains-that “it (the Supreme Court) shall have original jurisdiction in quo warranto, mandamus, habeascorpus and procedendo, and such appellate jurisdiction as may be provided by law.” Applying to this grant the maxim, Expressio unius est exclusio alterius, the conclusion is irresistible that the general assembly cannot add to the enumerated subjects of our original jurisdiction. Marbury v. Madison, 1 Cranch, 137; Kent v. Mahaffy, 2 Ohio St., 497. But our original jurisdiction in quo warranto is not doubted, and we have to inquire whether the desired order may be made in its exercise. In the consideration of that question the case of Yeoman v. Lasley, 36 Ohio St., 416, is suggestive. The proceeding in this court was-for the reversal of a judgment which the district, court had rendered in a suit for the foreclosure of a mortgagor’s equity of redemption. An injunction was not sought in the original suit, nor was a right-to that relief presented to the court below or considered by it. The question for ultimate determination by this court was whether the district court had erred in the decision of the case which had been presented to it. But this court, upon an application originally made here, allowed an injunction in favor of one of the parties to the proceeding in error and. against his adversary for “the protection of'the rights of the parties in the suit or matter under review, on error. ” It is true that it is said in the opinion that in allowing the injunction the court was exercising appellate, and not original jurisdiction. But as it was not a part of the jurisdiction invoked by the suit and exercised or refused by the district court, it •could be regarded as appellate jurisdiction only because; the order to be made was necessary to the proper and effective exercise of the appellate jurisdiction to reverse the judgment which the district court had rendered in the suit to foreclose. It has not been suggested, and it obviously could not be maintained, that our authority for the exercise of the original jurisdiction which, the constitution confers upon us is less complete than for the exercise of the appellate jurisdiction which we' derive from the statutes. The pertinent inference from the case cited is that a court has authority to make any judicial order which, from the nature of the case, may be necessary to the effective exercise of its jurisdiction, whether original or appellate. Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit. Authority to determine is exercised in the form of judgments, decrees, and orders, and it implies power to make all such orders- as may be appropriate to the case presented and necessary to give practical effect to the final judgment, as well as to preserve the subject of the action, pending the final determination of the case. In Kerr et al. v. Trego, 47 Pa. St., 292, it is appropriately said that “all bodies, except the legislature, are under law, and therefore for all transgressions of the law, are subject to tbe judicial power established by the constitution.” This is a public action, and its subject is the administration of the laws which provide for the conduct of popular elections. The more limited subject of inquiry started by this motion is the administration of those laws pending the case in quo warranto. Since the principal action involves its incidents, the court of common pleas, which alone has original jurisdiction of suits for injunctions, cannot with propriety, exercise that jurisdiction with respect to the subject of the action which is pending here; and it is entirely clear from the decisions- already adverted to, as well as from the obvious force of the reasons involved, that those having the apparent right should be protected in the exercise of these public functions. The power to grant an ancillary injunction for that purpose is inherent in the court which has jurisdiction of the principal subject. The case is novel only in the application of familiar principles of obvious necessity.

Motion granted.

Spear, C. J., Davis, and Crew, JJ., concur.

Summers, J.

(dissenting). I am unable to concur in the opinion that this is a discovery and not an invention. Quo warranto is of ancient origin, but no precedent for the conclusion reached is cited and I suspect none can be found, and for the very good reason that the proceeding is legal and not equitable, and authority to allow an injunction incident exclusively to chancery jurisdiction. The question is not affected by the code of civil procedure for the reason that original jurisdiction in quo warranto is conferred on this court by the constitution, which was adopted prior to the adoption of the code, and the jurisdiction so conferred is the common law jurisdiction in a proceeding in quo warranto, as it existed at the time of the adoption of the constitution. Clayton v. Freet, 10 Ohio St., 544; Hager v. Reed, 11 Ohio St., 626; Hartt v. Harvey, 32 Barb., 55, 66.

State ex rel. Campbell et al. v. Wolfenden et al., 74 N. C., 103, was a proceeding in the nature of a quo warranto and an injunction was asked until the final hearing of the case. The question of authority in such a proceeding to grant an injunction is not considered, but I suspect from Patterson v. Hubbs, 65 N. C., 119, that the question is settled by statute and a case based upon a statute is, of course, not a precedent. The opinion proceeds upon, the assumption that the power has not been conferred by statute and is to the effect that it could not be.

The question was made in The State v. Durkee et al., 12 Kan., 308, and if decided, the case supports this dissent.

The People v. Draper, 24 Barb., 265, also supports it, unless a distinction is to be taken between a case involving title to an office and one involving the existence of an office.

It is averred in the petition that the defendants, the Board of Deputy State Supervisors and Inspectors of Elections, have the right to the property belonging to that office, consisting of ballot boxes, books, papers, etc., and that they demanded possession of the same from the other defendants, assuming to be the other boards therein described, which was by them refused, and tha,t they unlawfully retain possession of the same and usurp and intrude into and- unlawfully hold the said offices of such-boards; and the prayer is that-the defendants/claiming to be the board of deputy state supervisors,'and the defendants, claiming to be the city board of elections, be ousted from said offices and that the defendants, claiming to be the board of deputy state supervisors and inspectors of elections, be inducted into that office, and to its rights, privileges, and franchises, together with the property appurtenant to said office, that is, to the property previously described and averred to be in the possession of the other defendants, and the motion is to restrain the defendants, members of the first mentioned board, from interfering with the last mentioned and to restrain and enjoin them from withholding or detaining from the defendants, members of the last mentioned board, any of the property described in the petition.

The case differs in no respect from those referred to in the opinion.- In none of them has a court of equity found that a prima facie title gave it any power to interfere by a mandatory injunction directing a surrender of property, but on the. contrary, whenever, it has interposed, it has been in the exercise of its clearly defined jurisdiction to protect the possession of property.

Hullman v. Honcomp, 5 Ohio St., 238, and others, are to the effect that generally,, even a court of equity will not interfere. . .

That the legislature may confer power upon the court incident to its original jurisdiction to allow- an injunction finds support in Yeoman v. Lasley, 36 Ohio St., 416, but not that the power is inherent.

That the remedy hj quo warranto is not as speecly or as efficacious as is desirable is not new (Cochran v. McCleary, 22 Ia., 75, 90), and in some of the states, for instance Tennessee and Maine, other remedies have been provided by statute.

In Prince v. Skillin, 71 Me., 361, 366, Appleton, C. J., says: “By quo warranto the intruder is ejected. By mandamus the legal officer is put in his place. The act c. 198, accomplishes by'one and the same process the objects contemplated by both these results. It ousts the unlawful incumbent. It gives the' rightful claimant the office to which he is entitled. It affords a speedy and effectual remedy instead of the tedious and dilatory proceeding of the common law. ’ ’

My excuse for indicating the reasons for my dissent is that the court being the exclusive judge of its own jurisdiction, ought not to exercise any hot «clearly possessed:  