
    Frank O. Kucera, appellee, v. Fred H. Allen et al., appellants.
    Filed February 15, 1919.
    No. 20856.
    Officers: De Facto Officer: Injunction: Ttle. The right of a cle facto officer to avail himself of a writ of injunction to enjoin interference or disturbance while in the possession of his office exists and is a proper remedy, and this procedure does not prevent adverse claimants from trying the right of title to the office in question.
    Appeal from the district court for Saline county: Ralph D. Brown, Judge.
    
      Affirmed.
    
    
      Charles F. Barth, for appellants.
    
      Glenn N. Venrick, contra.
    
   Aldrich, J.

This action was brought by the plaintiff against three members of the board of trustees of the village of Tobias, and one Mastín, to restrain them from interfering with him in the discharge of his official duties as one of the trustees of that • village, from disturbing him in the. exercise of the duties of his office, and to restrain Mastín from participating in any meetings of the village board.

In November, 1917, plaintiff was appointed trustee to fill a vacancy. He duly qualified and entered upon the discharge of his duties. The annual election was held the next April. At that time Mastín and himself received the same number of votes, and it was declared by the village board that neither was elected. The petition alleges that afterwards an alleged recount was had, and a certificate of election issued to Mastín, but that the same was void and of no effect. The plaintiff duly filed his oath as a hold-over officer and continued to act until Mastín and the other defendants refused to allow him to take part in the proceedings of the board, although he attempted to do so. The district court found for the plaintiff, and defendants appeal.

The main question in the case is whether plaintiff was entitled to bring this action,. or whether he can only maintain proceedings in quo warranto. In Hotchkiss v. Keck, 86 Neb. 322, it was said: i£Of course, an action of injunction is not the proper remedy to try title to public office. The many authorities cited by defendants in their brief establish that proposition, if indeed there was ever any doubt in regard to it. The law is just as clear that, where one is an incumbent holding the office under a prima facie legal right and performing the duties thereof, a court of equity will restrain an intruder from interfering with the proper exercise of those duties.” Plaintiff was in possession of the office and exercising his functions and duties as a de facto officer until after the alleged recount. This being tbe case, he was in possession of tbe office, and Mastin claiming under tbe recount was not entitled to take forcible possession. He is entitled to prosecute bis action in quo warranto to ascertain by what right tbe plaintiff is bolding tbe office. If that suit be determined in bis favor, tbe court will at once place him in legal and orderly manner in possession of the same.

Tbe appellee, being a de facto officer, has no need to try a controversy over tbe title to tbe office in order to protect bis position. See Ekern v. McGovern, 154 Wis. 157; Blain v. Chippewa Circuit Judge, 145 Mich. 59. A de facto officer has tbe right to avail himself of a writ' of injunction to enjoin interference while in possession of tbe office. 2 High, Injunctions, sec. 1315. Appellee is simply resorting to the remedy by injunction for tbe purpose of protecting bis position against, interference of adverse claimants whose title is disputed. Remelin v. Mosby, 47 Ohio St. 570. Tbe appellee herein, it seems, is bolding tbe office in question under a prima facie legal right, and as be is bolding bis position by virtue of bolding over, and bis successor not having been elected and qualified, be is a de facto officer notwithstanding tbe existence of a bona fide dispute between him and a claimant as to tbe title of the office. Thus it seems clear that, while appellee is acting as a de facto officer, be should not be disturbed in tbe exercise of this right, or in doing or performing all of tbe duties attendant upon his position, and is entitled to every protection necessary in tbe fulfilment of bis position. “It is a proper exercise of discretion to restrain interference * '* # in tbe performance of duty” until one’s title while acting' is determined in a proper proceeding instituted therefor. See Blain v. Chippewa Circuit Judge, 145 Mich. 59. It is contended that the certificate of election is conclusive evidence of tbe right of Mastin to tbe office under State v. Frantz, 55 Neb. 167. Tbe alleged certificate was not made by the proper body, nor at tbe proper time, nor in accordance with the law; hence the above principle is not applicable.

The finding and judgment of the trial court is free from errors and should be

Affirmed.

Sedgwick and Cornish, JJ., not sitting.  