Zumstein et al. v. Tafel, Mayor.

In the case of Delahanty v. Warner, 75 Ill., 185, the supreme court of Illinois, says: "A court of equity has no jurisdiciion to entertain a bill to enjoin the mayor and aldermen of a city from removing a party from an office, and appointing a successor, and from preventing the party from discharging his duties after removal by them, as the party's remedy at law is complete by quo warranto against the successor or mandamus against the mayor and councilmen."

In 19 Ind., 482, the supreme court, says: "It is not within the jurisdiction of a court of equity to enjoin a common council of a city from proceeding to hear and investigate charges preferred against water works trustees or other municipal officers, and removing them from office. A common council is not a judicial body, in the examination of charges preferred against a municipal officer, with a view to determine whether he shall be removed; and in removing him, it does not act judicially in such a sense as to subject its proceedings to the jurisdiction of a court of chancery either by way of prohibition or injunction."

The Ohio case cited to me by counsel for plaintiffs is the case of Weber v. Governor Bishop, 7 Dec. R., ———, decided by Judge Smith of the court of common pleas of this county in 1879. In that case Judge Smith issued a restraining order, which he subsequently dissolved, basing his dissolution thereof on a finding of fact that the allegations of the petition were not true. He does hold that the governor of the state, acting in a ministerial capacity, is subject to the authority of the judiciary in determining all legal questions judicially brought before it. There is no doubt about the correctness of this proposition and its applicability to the mayor of the city of Cincinnati in a proper proceeding. The cases cited and relied on by Judge Smith in that opinion are cases of mandamus. Judge Smith in that case does not seem to have had his attention especially directed to the question whether or not injunction was the appropriate proceeding in which to try the legal question involved in the ministerial act of the officer. I find that Judge Smith in the case of Miller v. Directors of Longview Asylum, 7 Dec. R., —, denied an injunction applied for to restrain the directors of that institution from trying Dr. C. A. Miller on certain charges looking to his removal.

The cases of Hogan v. Carberry, supra, and Hogan v. Sutton et al, supra, decided by the district court of this county (opinions by Judge Burnet), were both cases where the legality of proceedings by which the governor removed a member of the board of police commissioners was reviewed in a suit in mandamus.

It was held in 22 Ia., 75: "The right to a public office or franchise can not be determined in equity upon an original bill for injunction. Quo warranto is the proper proceeding."

One of the best considered cases directly on this point has been decided in 1893, by the common pleas court of Cuyahoga county, this state, Judge Stone delivering the opinion: "A court of equity will not interfere by injunction on the ground that the municipal officials charged by statute with authority to hear and determine charges made against such police officer and make such removal, hold their offices under an unconstitutional statute, or on the ground that such officials are acting from improper motives, and are so prejudiced as that the police officer can not obtain before them a fair and impartial hearing. In such a case the police officer has an adequate remedy at law by mandamus to compel the proper officials to reinstate him in case of his unlawful removal."

This case is in point on the contention of the plaintiff's counsel that the insufficiency of the charges in the case at bar strikes down the jurisdiction of the mayor entirely and leaves him powerless to prosecute this investigation.

If a law were unconstitutional the examining officer would certainly be without jurisdiction and an injunction would lie in that if it would in any case. The supreme court of Ohio, in the case of Reemelin et al v. Mosby, 47 O. S., 570, 572, Judge Williams, held: "As a general rule a court of equity will not exercise its jurisdiction to control the conduct of a public officer by injunction except when necessary to prevent a breach of trust, effecting a public franchise

Hamilton Common Pleas Court.

or some illegal act under color of authority, injurious to the property rights of individuals. An injunction may be properly allowed, however, where parties are at issue concerning their legal rights, and it is necessary to preserve their rights in statu quo until the determination of the controversy, and we entertain no doubt of the correctness of the rule established by the cases referred to by counsel for the motion, which is, that the remedy by injunction may be employed by the incumbent of a public office to protect his possession against the interference of an adverse claimant, whose title is in dispute, until the latter establishes his title at law."

The syllabus of the case is as follows: "The remedy by injunction may be employed by the incumbent of a public office to protect his possession against the interference of an adverse claimant whose title is in dispute until the latter shall establish his title at law; but it is not the appropriate remedy to try the title to a public office or determine questions concerning the authority to make appointments thereto.

"Injunction will not lie at the suit of members of a municipal board against the mayor to restrain him from the exercise of his appointing power under a statute which requires him to appoint the members of another municipal board on the ground that the act is unconstitutional, and the person so appointed will attempt to deprive the plaintiffs of their office."

The case at bar is not a trial of title to office, because plaintiff's title is admittedly good, but it is an application to a tourt of equity to intervene in the discharge of an executive or ministerial function by a public officer looking to the divesting of such title. The defendant is not a claimant to the office, setting up an adverse title, nor is the title to the office at all drawn in question. The utmost that chancery has ever permitted in this regard is a restraining order pendente lite in favor of the incumbents against the claimants during the trial at law to determine the title to the office. This certainly is not the case at bar. I have been cited to a large number of cases on the subject of prohibition.

The writ of prohibition is defined by High as an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior court for the purpose of preventing the inferior tribunal from usurping the jurisdiction with which it is not legally vested. It was originally a common law remedial writ. It does not exist in the state of Ohio.

Counsel for plaintiffs claim that inasmuch as the writ of prohibition does not exist in the state of Ohio, its place is taken and covered by the writ of injunction. I have been cited no authority on this proposition, and am unwilling independ ently to so hold. Further, even if injunction were to take the place of a writ of prohibition in Ohio, it would be extremely doubtful whether it would be applicable as contended for by counsel for plaintiffs in the case at bar. In the case of the State ex rel Attorney-General v. Hawkins, 44 O. S., 98, the supreme court, opinion by Judge Minshall, held that "the power conferred on the governor of the state by section 1872, of the Revised Statutes, as amended by said act to remove any members of the board of police commissioners is administrative and not judicial in its nature, and therefore not in conflict with article 4, section 1 of the constitution, conferring judicial power on courts of the state."

If the exercise or the power of removal is not judicial in its nature, even although the process of such removal may partake of the character of a judical proceeding, but is administrative, I do not see how an order could issue from this tribunal to that. (Also see 119. Ind., 482, quoted above).

My attention is called to the fact that injunction in Ohio is defined by statute, section 5571, Revised Statutes. Although injunction in Ohio is to a certain degree statutory, examination of the cases shows that it has always been recognized to be equitable in its nature and subject to all the rules of courts of chancery.

I am cited to a learned opinion by Sir George Jessel, Master of the Rolls, in the case of Bedow v. Bedow, 47 L. J., N. S. Ch. Rep., 588.

Zumstein et al. v. Tafel, Mayor.

"The jurisdiction of the high court to grant injunction is more extensive than that formely possessed by the court of chancery, which was limited by the practice of the chancellors and by precedents to certain specified cases."

I do not find anything to lead me to the view of plaintiff's counsel in the case at bar in this learned opinion. In the first place, the learned master bases his opinion upon an act of Parliment like which I know of no legislative provision in this country. Further, the order in that case was granted pending an adjustment of partnership affairs by arbitrators and involving property rights.

I am also cited to the case of Armitage v. Fisher, 24 Ñ. Y. Supplement, 650. This case, on its face seems more clearly to support plaintiffs' contention than any case cited. Even if this case could not be distinguished I would not feel justified in following it as against the high authority cited above. This action was not an action to remove the president of council from council as a member thereof, but merely to remove him from the office of its presidency. In that case the court found "that no express power seems to have been conferred, either by statute or by the rules of common council, as they existed at the time of the report of the committee on rules, for removing from his office the president of the common council as such."

In the case at bar there is no doubt about the power of the Mayor conferred on him by statute. It is merely the question of the proper and legal exercise of such power.

Referring to some of the cases relied on by plaintiffs' counsel, I note that the case of Wheeler v. Cooper, 57 How., P. 416, was a case of prohibition. The case of Reid ex rel. State v. Waldridge, 24 S. W. Rep., 457, is also a case where a writ of prohibition was applied for. The case of Moles v. Stevenson, 30 Atl. Rep., 647, was a case of mandamus. The case of the State ex rel. Gallagher v. Brown was a case of application for a writ of mandamus, The case of State ex rel Hart against the Council of Duluth, 55 N. W. Rep., 118, is a case where the proceedings were reviewed on certiorari. The case of Dullan v. Willson, 53 Mich., 392, is a case of quo warranto.

All of these cases involve and decide questions which may ultimately have to be decided in this controversy, but are not authority on the question as to whether or not injunction will lie in the case at bar.

Although it is an annoyance and an inconvenience to the supervisors to be compelled to defend themselves against frivolous charges, the hearing and investigation is not such apprehended injury as a court of chancery would undertake to prevent by injunction. Of course the real injury apprehended is removal from office, but this can not be enjoined, especially at this stage of the proceedings, and for three reasons: First-Non constat, the mayor may acquit these plaintiffs on the hearing on these insufficient charges.

Second-Public office in this country is not a property right. Tenure of public office is not such a property right for the protection of which the intervention of equity may be invoked. Referring to the opinion of Justice Gray where he says, "No English case has been found of a bill for an injunction to restrain the appointment or removal of a muncipal officer," if equity will not intervene to protect an incumbent in the possession of public office in England, where office partakes so much more of the nature of property right than it does in this country a fortiori it will not in this.

Third-There is a full and adequate remedy at law in either mandamus or quo warranto, depending upon circumstances and what action the mayor may take if any.

Counsel for both plaintiffs and defendant impressed on me the importance of this case and the gravity of my decision. I realize it and appreciate it beyond anything they have expressed. On the one hand, the city should be protected from partisan, political revolution; on the other, nothing should stand in the way of the highest purity of our municipal government. But there is another danger to be guarded against, and that is that the whole-sale, vague, irresponsible

Lucas Common Pleas Court.

attack on public officials is destroying the confidence of the American people in our form of govenment. If a man has been guilty of neglect of duty or misconduct in office name him, state when and where he did it, and what he did, and then the excutive and judicial and all branches of government will join in the temperate, dignified and legal investigation of the charge, and the convicted offender will be duly punished.

His Honor, Mayor Tafel, knows that I hold him in high personal esteem; but I want to say frankly to him and to his learned counsel that at the conclusion of this hearing I desired to put a stop to further proceedings on these charges as they now stand, and searched diligently for authority to justify me in enjoining them, because I felt that proceeding on such charges would be a travesty on justice and municipal government.

I can not enjoin. The temporary restraining order heretofore granted will be dissolved.

E. W. Kittredge, Joseph Wilby and William M. Ampt, for the plaintiffs. E. G. Kinkead and Wade Ellis, for the Mayor.

Theo. Horstman, for the charges.

RIPARIAN RIGHTS-BOUNDARIES.

[Lucas Common Pleas Court, November 20, 1896.]

* ANNIE M. HEAD V. ABRAM M. CHESBROUGH.

CONVEYANCE OF LAND SITUATED UPON THE BANK OF A NAVIGABLE STREAM.

A conveyance of platted lots which are situated upon the bank of a navigable stream, no part of the bed of the stream being platted, includes all the riparian rights of the grantor in front of said lots to the center of the stream, although such stream is not mentioned in the conveyance. To exclude such rights they should be reserved or

excepted in the deed.

PUGSLEY, J.

The plaintiff claims to be the owner of all that part of original lot thirteen in the sub-division of Wausayon tract, which lies northerly of lots eleven and twelve on the plat of Ironville, the same being the bed of the Maumee river extending from said Ironville lots eleven and twelve to the center of the channel, and she asks in this action to have her title quieted to these premises against the defendant.

The material facts are as follows: Prior to January 12, 1870, one David Weaver was the owner of said original lot thirteen (13), which was bounded on the northerly end by the Maumee river, a navigable stream. On said January 12, 1870, Weaver duly platted a part of said original lot thirteen into town lots with streets and alleys, and designated the plat as a map of the village of Ironville. On the northerly end of said plat is a tier of lots running from west to east, and numbered consecutively from eleven to sixteen, both inclusive. Between the northerly line of said tier of lots and the southerly line of the river as drawn on the plat, there is a narrow strip or space which was left unplatted. The dimensions of this strip are not given, but according to the scale it is estimated to be five or six feet in width. No part of the bed of the river in front of this narrow strip was platted into lots. In the year 1884, the plaintiff became the owner of said lots eleven and twelve, on the plat of Ironville, and also of all the interest of said Weaver in and to that part of said original lot thirteen lying in front of said platted lots. On the 20th of June, 1885, the plaintiff conveyed

This case was appealed to the circuit court, and the same judgment was rendered by that court. See opinion, 7 Dec., 176.

Head v. Chesbrough.

to one Bridge, said lots eleven and twelve of the plat of Ironville, together with the privileges and appurtenances, to the same belonging, without making any reservation or exception of the riparian or other rights in front of said lots. Thereafter, on August 28, 1895, said Bridge conveyed said lots eleven and twelve to the defendant. The evidence shows that after said plat of Ironville was made and before said lots eleven and twelve were conveyed by the plaintiff to Bridge, said narrow strip of land and some part of the front of said lots eleven and twelve were washed away by the action of the water in the river, and that on June 20, 1885, the date of the conveyance, the water of the river stood to a greater or less extent upon the entire front of said lots. This is a brief statement of the material facts necessary to be considered in determining the question involved.

The claim on the part of the plaintiff is, that by the plat of Ironville, lots eleven and twelve, did not extend to the river, but that the narrow strip and the submerged land in front of said lots to the center of the river were reserved, and that the conveyance by the plaintiff to Bridge of lots eleven and twelve did not pass the title to the narrow strip and submerged land in front, although prior to the conveyance, the narrow strip and a part of the lots had been washed away by the action of the water, and become submerged. On the other hand, it is contended by the defendant, first, that according to the plat of Ironville, lots eleven and twelve were bounded by the river. and that the conveyance of said lots transferred all the riparian rights of the grantor in front of said lots; and second, that the deed from plaintiff to Bridge of lots eleven and twelve, made June 20th, 1885, after the plaintiff had acquired all the riparian rights which she now claims, and when in fact the lots ran into the water, transferred all the riparian rights of the plaintiff in front of said lots to the center of the river.

The question to be decided is the same as would arise if Weaver had retained the ownership of the entire property, and had made a conveyance to Bridge of lots eleven and twelve, in June, 1885, and under the same circumstances which surrounded the making of the conveyance by the plaintiff.

Assuming, but without deciding, that it was the intention of Weaver in making the plat of Ironville, to separate the upland from the bank of the river and the submerged land in front of the bank, and that a conveyance by him of lots eleven and twelve while the land remained in the same condition as when platted, would extend only to the bank, I am of opinion, after an examination of all the authorities that were cited, that under the facts of this case, the second proposition contended for by the defendant is correct, and that the conveyance made by the plaintiff to Bridge passed to the grantee all the riparian rights of the grantor in front of said lots to the center of the river.

I will not undertake to review all the Ohio decisions in which the subject of grants of land on the shore of navigable streams has been considered, but I will refer only to those which seem to be more nearly analogous to the case at bar. In the case of Day v. Railroad Co., 44 Ohio St., 106, the first paragraph of the syllabus is as follows:

"A general deed of premises lying upon the bank of a river, in which is constructed a canal, conveys the grantor's rights to the center of the stream bounding the property. And to reserve or exclude from the grant any such rights, the conveyance should contain proper words of such reservation or exclusion."

The material facts in this case were these: The Pennsylvania & Ohio Canal Co., under due authority, constructed a canal in the bed of the Cuyahoga river between the east bank and the middle of the river. Thereafter the deed was made to the plaintiffs, the construction of which was the question to be decided. The land conveyed by the deed was situated upon the east bank of the river, and was described by metes and bounds. After giving the courses and distances from the point of beginning, the description proceeds as follows: