Appeal of Gilroy , 100 Pa. 5 ( 1882 )

Mr. Justice Green

delivered the opinion of the court, March 13th 1882.

This being an appeal from an order continuing a preliminary injunction, we do not pass upon the merits of the case, nor give any extended opinion upon the subject of the controversy. P was clearly error to grant the preliminary injunction in this case, for the reason that no affidavits were filed with the bill, setting out and supporting the facts therein stated. A mero general affidavit to the truth of the facts is entirely insufficient. Kincaid’s Appeal, 16 P. F. S. 411.

As the writ was issued without notice to the opposite party, no opportunity to object on this ground was afforded. It is unnecessary to consider the effect of the affidavits subsequently-filed on the hearing of the motion to continue, for the reason that we are also of opinion that there was an adequate remedy at law by writ of quo warranto. The practical controversy is over the title to the office of school director of the borough of Archbald. The bill alleges the title of the plaintiffs, and denies the title of the defendants, and prays for an injunction to restrain the latter from exercising the office, or performing the duties of school directors of said borough.

In Hagner v. Heyberger, 7 W. & S. 104, it was held that an injunction will not be granted to restrain an individual from exercising the office of school director, who has accepted the office of commissioner of an incorporated district; the question of his right to exercise the duties of the office must be tried by proceedings on a writ of quo warranto, which affords an ample legal remedy.

In Updegraff v. Crans, 11 Wr. 103, we held that a bill in equity for an injunction to restrain borough officers from entering upon official duties under an alleged illegal appointment of town council, will not lie, though they had not exercised, or attempted to exercise the duties of their offices; the remedy is at law, by quo warranto, and to be invoked after entry into, or exercise of authority under, their appointment. The learned judge of the court below admits that injunction is not the proper remedy to try the title of the appellees, and regrets that a quo warranto for that purpose was not sued out long since. Nevertheless, he continues an injunction which restrains them from performing the functions of their office. The affidavit of Corcoran, filed on behalf of the defendants, set forth an election of all the members of the Gilroy board by a majority of the votes of the electors of the borough; a subsequent organization of the board and election of officers thereof; continuous subsequent action by them as such board ; the levy of a tax, employment of teachers, opening and keeping open the public schools of the borough for a term of nine months, from August 22d 1881; possession of the school, buildings and property of the borough with the sanction of a majority of the qualified electors of the borough, and a denial that the plaintiffs or any other persons wore legally acting as school directors of said borough. We cannot conceive how the merits of the bill can be determined in the face of such an affidavit, without inquiring into the validity of the title claimed by the defendants to the office in question. But it is perfectly clear that such a question can not be tried in such a proceeding. The statutory remedy is not only adequate, but it is exclusive. 2 Purd. Dig. 1206-1209. The title to this office is in dispute, and, like all other cases of disputed right, is subject to the rule that an injunction will not be granted until the question of right is settled at law. Brown’s Appeal, 12 P. F. S. 17; Minnig’s Appeal, 1 Norr. 373. The case of Kerr v. Trego, 11 Wr. 292, is not applicable to this, either in its facts, or in the principles which controlled it. We give no opinion on the merits of this contest, as that subject may come before us hereafter.

Decree reversed, and record remitted at the cost of the appellees.