O'Boyle v. Shannon

On Petition eoe a Reheaeing.

Niblack, J.

— We are asked to reconsider our decision in this case principally upon the gi’ound that the conclusion reached by us leaves the property of the several counties of *162the State at the mercy of the boards of commissioners of the counties respectively, and allows such boards to sell or otherwise dispose of such property without restraint, and in utter disregard of the rights and interests of the people, for whose use the same is held.

It is unfortunately true that the commissioners of the several counties, in common with other public officers, may, if so inclined, abuse many of the trusts reposed in them, in such a way as to leave those most interested without any adequate remedy, but the management and general control of all property interests must ultimately rest in the discretion of some person or organization of persons, either as the owner or trustee, and in regard to county property that discretion is vested in the commissioners of the respective counties, to be exercised by them in good faith and presumably for the best interests of the people who elect them, under general laws prescribing their duties as such commissioners. If, however, such commissioners shall fail to observe good faith in the management or disposition of such property, or shall fraudulently sell or attempt to sell the property committed to their care, every taxpayer of the proper county has his remedy by injunction, not only against the faithless commissioners, but against all in collusion with them. In such an emergency, an application for an injunction can often be made a more prompt, efficient and far-reaching remedy than ordinary proceedings upon an appeal would afford.

If the statement of facts, made by counsel for the appellant by way of illustration, comprises a correct history of this case, then the appellant simply mistook his remedy, by attempting to appeal instead of applying for an injunction. In case an injunction could not have been made effective, the commissioners would have been personally liable for the gross breach of the trust confided to them.

"We have considered this case only with reference to the laws in force at the time the appeal in this case was prayed, and have not enquired whether there may not have since been *163additional legislation on the subject of the management and disposition of county property.

The petition for a rehearing is overruled.