THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
CHUUK STATE TRIAL DIVISION
Cite as Esechu v. Mariano ,
8 FSM Intrm. 555 (Chk. S. Ct. Tr. 1998)

[8 FSM Intrm.  555]

SATERO ESECHU et al.,
Plaintiffs,

vs.

LORENZO MARIANO et al.,
Defendants.

CIVIL ACTION #6-98

ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER

Wanis R. Simina
Associate Justice

Decided:  January 12, 1998

APPEARANCES:
For the Plaintiffs:          Hans Wiliander, trial counselor
                  P.O. Box 389
                  Weno, Chuuk FM 96942

For the Defendants:     Joseph Muritok, trial counselor
                  P.O. Box 189
                  Weno, Chuuk FM 96942

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HEADNOTES
Statutes ) Construction
     It is a well settled rule of law that an ordinance will be presumed to be valid, unless the contrary appears on its face.  Esechu v. Mariano, 8 FSM Intrm. 555, 556 (Chk. S. Ct. Tr. 1998).

Statutes
     When an ordinance is not void upon its face, but its invalidity is dependent upon facts, it is incumbent upon the party relying upon the invalidity to aver and prove the facts which make it so.  It is also the rule that one who seeks to overthrow an ordinance on the ground that it was not regularly or properly enacted has the burden of proving that fact.  Esechu v. Mariano, 8 FSM Intrm. 555, 556 (Chk. S. Ct. Tr. 1998).

Civil Procedure ) Injunctions
     The mere fact that a statute is alleged to be invalid will not entitle a party to have its enforcement enjoined.  Further circumstances must appear which bring the case under some recognized head of equity jurisdiction and present some actual or threatened and irreparable injury to complainant's rights for which there is no adequate legal remedy.  Esechu v. Mariano, 8 FSM Intrm. 555, 556 (Chk. S. Ct. Tr. 1998).

[8 FSM Intrm.  556]

Civil Procedure ) Injunctions
     When issues of fact must be decided in the proper forum before the validity of a municipal ordinance can be determined and other cases are pending that will decide those issues, plaintiffs have an adequate remedy at law.  Therefore, when it does not clearly appear from specific facts alleged that immediate and irreparable injury will result to plaintiffs before the defendants can be heard in opposition, a request for a temporary restraining order will be denied and the defendants must be served with a copy of the complaint forthwith so that a hearing on the plaintiffs' preliminary injunction request can be held.  Esechu v. Mariano, 8 FSM Intrm. 555, 556-57 (Chk. S. Ct. Tr. 1998).

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COURT'S OPINION
WANIS R. SIMINA, Associate Justice:
     This cause comes before the Court on motion of Plaintiffs seeking a Temporary Restraining Order to enjoin Defendants from expending, dispensing and disbursing funds pursuant to the Operation Budget and CIP funds of the Siis Municipality for Fiscal Year, 1998.  The complaint alleges, in substance, that the Siis Municipal Budget for the Fiscal Year 1998 is void because it was illegally prepared and made by individuals who have no legal authority to do so.

     No copy of the Budget or Ordinance adopting the same is attached to the Bill of Complaint or the affidavit in support of the Motion for a TRO. Therefore the Court has no means to determine if the Ordinance in question is void on its face.

     However, it is a well settled rule of law that an ordinance will be presumed to be valid, "unless the contrary appears on its face."  56 Am. Jur. 2d Municipal Corporations 382, at 421 (1971).
 
Hence, where an ordinance is not void upon its face, but its invalidity is dependent upon facts, it is incumbent upon the party relying upon the invalidity to aver and prove the facts which make it so.  It is also the rule that one who seeks to overthrow an ordinance on the ground that it was not regularly or properly enacted has the burden of proving that fact.

Id. 381, at 420 (footnote omitted).

     Other well recognized rules of equity jurisdiction indicate that the Plaintiffs' motion for a TRO is not well taken.  As stated in 42 Am. Jur. 2d Injunctions 187, at 957 (1969) (footnote omitted):

The usual ground for asking injunctive relief against enforcement of [ordinances] is their invalidity.  But invalidity, of itself, is not sufficient to warrant the exercise by equity of its extraordinary injunctive power.  In other words, the mere fact that a statute is alleged to be . . . invalid will not entitle a party to have its enforcement enjoined.  Further circumstances must appear which bring the case under some recognized head of equity jurisdiction and present some actual or threatened and irreparable injury to complainant's rights for which there is no adequate legal remedy.

     This Court takes judicial knowledge of its own records and case files in the office of the Clerk of the Court.  The underlying evidence of facts necessary to resolve the issue of whether the Defendants are the duly elected officials of the Siis Municipality will be presented during the trial on the merits of these pending cases.  These issues of fact must be decided in the proper forum before the

[8 FSM Intrm.  557]

validity of any Siis Municipal Ordinance can be determined.

     It is clear that the Plaintiffs have an adequate remedy at law, and in fact, Plaintiffs are in the process of pursuing that remedy through the cases now pending.

     Therefore, the Court finds that the Complaint, Motion and Affidavit filed by Plaintiffs do not establish that the acts of Defendants about which the Plaintiffs complain are void, and if voidable, the Court finds that Plaintiffs have an adequate remedy at law to establish such facts.  The Court further finds that it does not clearly appear from specific facts alleged that immediate and irreparable injury will result to Plaintiffs before the Defendants can be heard in opposition.  The Court also finds that nothing in Plaintiffs' Motion indicates whether they have a "substantial chance" to prevail on the merits.  Finally, the Court finds that on balancing of damages to the Plaintiffs and the conveniences generally to the orderly process of the Siis Municipal Government, the Motion for a Temporary Restraining Order is due to be denied.  See Chk. Civ. R. 65; Madrainglai v. Emesiochel, 6 TTR 440, 447 (Pal. 1974).

     It is ordered that the Motion for Temporary Injunction is denied and that the Defendants be served with a copy of the Complaint forthwith and that a hearing on the Plaintiffs' request for Preliminary Injunction be held in the Chuuk State Courthouse at Nantaku on the 29th day of January, 1998 at the hour of 9:00 o'clock a.m.
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