duct of the affairs of government in a manner not authorized by law.31 318 § 1137. Public officers. The use of this writ is common to restrain public officials from doing an illegal official act,319 or in the illegal, arbitrary, or unauthorized performance of official duties, but it can only be used to restrain positive breaches of duty.320 While it is true that dis 318 Caruthers v. Harnett, 67 Tex. 127, 2 S. W. 523. But see McMillen v. Butler, 15 Kan. 62. Proceedings for injunction to restrain county officers from removing their respective offices to another town cannot be maintained during the pendency of an action to determine the legality of the county seat removal. Lane v. Morrill, 51 N. H. 422. 319 Smith v. Reynolds, 9 App. D. C. 261; Warrin v. Baldwin, 105 N. Y. 534, 12 N. E. 49; Moss v. Board of Education, 58 Ohio St. 354, 50 N. E. 921. Equity will restrain the collection of taxes levied to pay bonds for the erection of a school house where the school board has exceeded its authority in this respect. Trustees of Burroughs School v. Horry County Board of Control, 62 S. C. 68, 39 S. E. 793. 320 Mississippi v. Johnson, 71 U. S. (4 Wall.) 475. The president or the United States cannot be enjoined from carrying into effect an unconstitutional act of congress. Mason v. Rollins, 2 Biss. 99, Fed. Cas. No. 9,252; Grant v. Cooke, 7 D. C. 165; Creanor v. Nelson, 23 Cal. 465; People v. McClees, 20 Colo. 403, 38 Pac. 468, 26 L. R. A. 646. Title to office cannot be tried -on injunction proceedings restraining the secretary of state from delivering certificates of election to certain persons claiming to be elected as district judges. Lawrence v. Leidigh, 58 Kan. 676, 50 Pac. 889; Poyntz v. Shackelford, 107 Ky. 546, 54 S. W. 855. An officer in rightful possession of his office is entitled to an injunction to protect him from acts interfering with the discharge of his official duties to the detriment of public busi ness. Voisin v. Leche, 23 La. Ann. 25; First Nat. Bank of Charlotte v. Jenkins, 64 N. C. 719; State v. Wolfenden, 74 N. C. 103. Title to office cannot be tried by injunction. See as holding the same, Patterson v. Hubbs, 65 N. C. 119, and Cozart v. Fleming, 123 N. C. 547, 31 S. E. 822. Updegraff v. Crans, 47 Pa. 103. The proper remedy to determine title to office is by quo warranto, not by injunction. State v. Herreid, 10 S. D. 16, 71 N. W. 319. In a contest for title to office, officials having a prima facie title will not be restrained from exercising their duties pending the litigation. See, also, on same point, Harding v. Eichinger, 57 Ohio St. 371, 49 N. E. 306. Caruthers v. Harnett, 67 Tex. 127, 2 S. W. 523. The plaintiff must show not only that he is a resident of the county but also a citizen and a taxpayer and that he will be 321 cretionary acts or those directly imposed by law are not ordinarily interfered with by the courts, yet a court of equity will restrain an abuse of a discretionary power or the unwarranted and malicious performance of a discretionary duty or an act unwarranted by law.322 The removal of subordinate employees or officials unless under the protection of civil service rules 323 positive provisions of law will not be restrained, and public officials in the exercise of the police power of the state are not subject, except in extreme cases, to any control through a writ of injunction.325 greatly and irreparably injured by the acts which he seeks to enjoin. Ehlinger v. Rankin, 9 Tex. Civ. App. 424, 29 S. W. 240. A person can be restrained from usurping an office through injunction. Ward v. Sweeney, 106 Wis. 44, 82 N. W. 169. Title to office cannot be determined in injunction proceedings. 321 Mutual Life Ins. Co. v. Boyle, 82 Fed. 705; Wong Wai v. Williamson, 103 Fed. 1; Rice v. Smith, 9 Iowa, 571; Cooper v. Alden, Har. (Mich.) 72; Tribune Ass'n v. Sun Printing & Pub. Ass'n, 7 Hun (N. Y.) 175. But see Cox v. Moores, 55 Neb. 34, 75 N. W. 35. 322 Gibbs v. Usher, 1 Holmes, 348, Fed. Cas. No. 5,387; Woolsey v. Dodge, 6 McLean, 142, Fed. Cas. No. 18,032; Simpson v. Union Stock Yards Co., 110 Fed. 799; Niagara Fire Ins. Co. v. Cornell, 110 Fed. 816; People v. Pacheco, 27 Cal. 175; Delaware Surety Co. v. Layton (Del.) 50 Atl. 378; Parsons v. Durand, 150 Ind. 203, 49 N. E. 1047; Jones v. Board of Trade, 52 Kan. 95, 34 Pac. 453; Nelson v. State Board of Health, 108 Ky. 769, 57 S. W. 501, 50 L. R. A. 383. An in.junction will issue to restrain a state board of health from interfering with one in the practice of 324 or his profession as an osteopath. Larcom v. Olin, 160 Mass. 102, 35 N. E. 113. The secretary of state cannot be restrained from issuing a city charter on the ground that the statute authorizing it is unconstitutional. Attala County Sup'rs v. Niles, 58 Miss. 48; Wabaska Elec. Co. v. City of Wymore, 60 Neb. 199, 82 N. W. 626; Armatage v. Fisher, 74 Hun, 167, 26 N. Y. Supp. 364; McCullough v. Brown, 41 S. C. 220, 19 S. E. 458, 23 L. R. A. 410. 323 Priddie v. Thompson, 82 Fed. 186; Butler v. White, 83 Fed. 578; Couper v. Smyth, 84 Fed. 757. 324 White v. Berry, 171 U. S. 366; Morgan v. Nunn, 84 Fed. 551; Page v. Moffett, 85 Fed. 38; Heffran v. Hutchins, 160 Ill. 550, 43 N. E. 709; Palmer v. Board of Education, 47 App. Div. 547, 62 N. Y. Supp. 485; Reeves v. Griffin, 29 Wkly. Law Bul. (Ohio) 281. But see Wheeler v. Board of Fire Com'rs, 46 La. Ann. 731, 15 So. 179; Stahlhut v. Bauer, 51 Neb. 64, 70 N. W. 496. 325 Weiss v. Herlihy, 23 App. Div. 608, 49 N. Y. Supp. 81; Coykendall v. Hood, 36 App. Div. 558, 55 N. Y. Supp. 718; Campbell v. York, 30 Misc. 340, 63 N. Y. Supp. 581; Cohen v. Goldsboro Com'rs, 77 N. C. 2. § 1138. Ordinances; laws. The passage of ordinances or laws through which conditions would be created giving rise to the equitable relief under discussion clearly may be restrained,326 and this right most emphatically exists in connection with the enforcement of invalid laws or ordinances.327 It is quite generally held, however, in this conneetion, that the existence of an ordinance prohibiting the construc 326 Leverich v. City of Mobile, 110 Fed. 170. Passage of ordinance prohibiting the charging of a public wharfage may be restrained by in junction. Atkinson v. Wykoff, 58 Mo. App. 86. But see Lewis v. Denver City Water Works Co., 19 Colo. 236, 34 Pac. 993. Injunction will not issue to restrain the passage of an ordinance when it does not appear that irreparable injury will immediately result. Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 505. courts can set aside a law because it is unconstitutional but cannot forbid its passage. State v. Superior Ct. of Milwaukee County, 105 Wis. 651, 81 N. W. 1046, 48 L. R. A. 819. See, also, Atkinson v. Wykoff, 58 Mo. App. 86. The 327 Yale College v. Sanger, 62 Fed. 177; Platte & D. Canal & Milling Co v. Lee, 2 Colo. App. 184, 29 Pac. 1036; Verdery v. Village of Summerville, 82 Ga. 138, 8 S. E. 213; City of Macon v. Hughes, 110 Ga. 795, 36 S. E. 247; City of Chicago v. Ferris Wheel Co., 60 Ill. App. 384; Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, 51 N. E. 758, 42 L. R. A. 696. Ordinance excluding vehicles from certain streets. Davis v. Fasig, 128 Ind. 271, 27 N. E. 726. Where some of the provisions of an ordinance are not invalid, its enforcement cannot be enjoined. City of Rushville v. Rushville Natural Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321; McFarlain v. Town of Jennings, 106 La. 541, 31 So. 62; Hottinger v. City of New Orleans, 42 La. Ann. 629, 8 So. 575; Deems v. City of Baltimore, 80 Md. 164, 30 Atl. 648, 26 L. R. A. 541; Folkerts v. Power, 42 Mich. 283; Sylvester Coal Co. v. City of St. Louis, 130 Mo. 323, 32 S. W. 649; Wood v. City of Brooklyn, 14 Barb. (N. Y.) 425; Hall v. Board of Excise, 31 How. Pr. (N. Y.) 331; Dailey v. Nassau County R. Co., 52 App. Div. 272, 65 N. Y. Supp. 396; United Traction Co. v. City of Watervliet, 35 Misc. 392, 71 N. Y. Supp. 977. An ordinance limiting the speed of street cars to six miles an hour will be enjoined upon the evidence that this speed was a detriment to the company and to public service. Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668. The enforcement of a void city .ordinance not resulting in an injury cannot be restrained. City of Austin v. Austin City Cemetery Ass'n, 87 Tex. 330, 28 S. W. 528; State v. Cunningham, 81 Wis. 440, 51 N. W. 724, 15 L. R. A. 561. But see Mutual Elec. Light Co. v. Ashworth, 118 Cal. 1, 50 Pac. 10; Ludlow & C. Coal Co. v. City of Ludlow, 19 Ky. L. R. 1381, 43 S. W. 435; Dubos v. Dreyfous, 52 La. Ann. tion of a building of a certain character or within certain limits is no ground for the issue of an injunction to prevent its erection.328 § 1139. Parties. It is essential in injunction proceedings equally with other cases that all persons interested or against whom the same relief is sought should be made parties to the proceedings.320 The strict rules of pleading apply in the use of the corporate name of a public corporation or an official board. 330 It is seldom that an action brought by a private individual is necessary in order to protect public interests, but, as already noted, a taxpayer or property owner under certain conditions is given this right where through the laxity, inaction, or connivance of those in authority, such a course of action is necessary. 331 Pleadings. It is essential that all pleadings in injunction proceedings should state specifically and clearly the grounds for relief and the conditions which require the interposition of a court. of equity.332 Inferences which sometimes aid allegations in ordi 1117, 27 So. 663. The writ will issue to enforce police regulations relative to partition walls. 328 Incorporated Town of Rochester, v. Walters, 27 Ind. App. 194, 60 N. E. 1101; Rice v. Jefferson, 50 Mo. App. 464; City of Manchester v. Smyth, 64 N. H. 380, 10 Atl. 700; Young v. Scheu, 56 Hun, 307, 9 N. Y. Supp. 349; Village of New Rochelle v. Lang, 75 Hun, 608, 27 N. Y. Supp. 600; City of Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128. But see Kaufman v. Stein, 138 Ind. 49, 37 N. E. 333; Lemmon v. Town of Guthrie Center, 113 Iowa, 36, 84 N. W. 986. See, also, Northern Pac. R. Co. v. City of Spokane, 52 Fed. 428. 329 Lussem v. Sanitary Dist. of Chicago, 192 Ill. 404, 61 N. E. 544; State v. Anderson, 5 Kan. 90; State v. Zachritz, 166 Mo. 307, 65 S. W. Abb. Corp. Vol. III — 35. 999. Jurisdiction of the person is sufficient to give the court jurisdiction of the subject-matter in injunction proceedings which are solely equitable. Benson v. City of Albany, 24 Barb. (N. Y.) 248. Bond holders are necessary parties in a suit to restrain the payment of interest on city bonds. Stallcup v. City of Tacoma, 13 Wash. 141, 42 Pac. 541. The purchasers and holders of bonds are necessary parties in an action by the taxpayers to enjoin a city from paying interest. upon them. 330 Kansas City v. Hanson, 8 Kan. App. 290, 55 Pac. 513. The city clerk is not a necessary party in an action to restrain the collection of an illegal local assessment. 331 See §§ 1157, 1160, post. 332 Grant v. Cooke, 7 D. C. 165; Town of Albertville v. Rains, 107 nary actions are not permissible.333 Allegations of irreparable injury are not sufficient, but the facts and conditions which exist and by reason of which the irreparable injury will occur must be definitely given.334 § 1140. Quo warranto; nature of remedy. The states which have adopted the code system of pleading, as a general rule, have provided, by statute, for proceedings in the nature of quo warranto. These are generally regarded as substitutes for the common law remedy 335 and not, in the absence of clear legislative intent to do so, as narrowing 336 or enlarging 837 the grounds of action or making the new remedy applicable when the common law writ would not have been.338 Quo warranto, or a proceeding of a similar nature is the appropriate remedy for the trial of the title to a public office,339 or the right of a public cor Ala. 691, 18 So. 255; Gabbell v. Williams, 127 Ala. 320, 28 So. 405; L. B. Price Co. v. City of Atlanta, 105 Ga. 358, 31 S. E. 619; Heinroth v. Kochersberger, 173 Ill. 205, 50 N. E. 171; Kansas City v. Hobbs, 62 Kan. 866, 62 Pac. 324; Shulz v. City of Albany, 42 App. Div. 437; 59 N. Y. Supp. 235; Hurlbut v. Town of Lookout Mountain (Tenn. Ch. App.) 49 S. W. 301; Wood v. City of Victoria, 18 Tex. Civ. App. 573, 46 S. W. 284; Hamer v. Brown, 40 S. C. 336, 18 S. E. 938; Strauss v. City of Dallas, 73 Tex. 649, 11 S. W. 872; City of Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128. 333 Bardrick v. Dillon, 7 Okl. 535, :54 Pac. 785. 334 McFarlain v. Town of Jennings, 106 La. 541, 31 So. 62. An allegation that plaintiff's property had been impounded and was about to be disposed of shows sufficiently the irreparable injury. White Sulphur Springs Co. v. Holly, 4 W. Va. 597. 835 Attorney General v. Sullivan, 163 Mass. 446, 40 N. E. 843, 28 L. R. A. 455. 336 Watkins v. Venable, 99 Va. 440, 39 S. E. 147. 337 Wishek v. Becker, 10 N. D. 63, 84 N. W. 590. 338 Hinckley v. Breen, 55 Conn. 119, 9 Atl. 31. The provisions of the Conn. Practice Act abolishing forms of action does not authorize the maintenance of a suit in equity to test the title to an office. 339 Werts v. Rogers, 56 N. J. Law, 480, 28 Atl. 726, 29 Atl. 173, 23 L. R. A. 354; Ter. v. Ashenfelter, 4 Gildersleeve (N. M.) 93, 12 Pac. 879; Grant v. Chambers, 34 Tex. 573; Peters v. Bell, 51 La. Ann. 1621, 26 So. 442; People v. Scannell, 7 Cal. 432; First Parish in Sudbury v. Stearns, 38 Mass. (21 Pick.) 148; Lindsey v. Attorney General, 33 Miss. 508; Com. v. Cullen, 13 Pa. 133; Com. v. Small, 26 Pa. 31. The right to a military office is properly triable in quo warranto. Hyde v. State, 52 Miss. 665. The remedy lies to remove from office |