41 La. Ann. 333 | La. | 1889
The opinion of the Court was delivered by
Simplified and shorn of redundancy, the averments of plaintiff’s petition are to the substantial effect: that he is the actual incumbent, duly appointed, commissioned and qualified, of the office of member of the Board of Flour Inspectors for the City and Port of New Orleans; that he is entitled, under the Constitution and laws of the State, to continue in the enjoyment and exercise the functions of his said office until his successor is duly appointed and qualified; that the said board is composed of five members, a majority of whom constitute a quorum, and that under its organization the revenues and receipts constitute a common fund placed in the custody of a member appointed as treasurer, whose duty it is to account for the same monthly to the board, and after deduction of expenses, to divide the same equally among the members; that the defendant, acting under the pretended authority of an invalid appointment by the Governor of the State, unless restrained by injunction, will present himself to the other members of said board for recognition as a member thereof, and that the said members, unless also restrained, will grant him such recognition and will admit him, as such member, to the discharge of the duties of said office and to participation in the emoluments thereof, to the irreparable injury of plaintiff; that pending the judicial determination of the disputed right to said office, plaintiff, as the actual incumbent thereof, is entitled to be protected in his possession, and that defendant and Ins fellow-members of the board should be enjoined from any action interfering therewith or infringing his rights of discharging the duties and receiving the emoluments of said office, “until such time as the disputed right thereto shall be judicially determined, after proper proceedings in due course of law.” *
The defendant, Poincy, excepted on two grounds : 1. That plaintiff could not stand judgment without the assistance of the State; 2. that the petition disclosed no cause of action, in this, that the title to public office cannot be tested by injunction.
The exceptions attribute to the action a character wMch, clearly, it does not possess, viz: the character of an action to determine a disputed title to a public office. .If it were such an action, nothing can be better settled than that, under the laws of this State, it could only be
It is a corrollary of the above principle that an injunction is not a proper remedy to try title to public office. High on Inj. ( 2nd Edition) § 1312-3.
But from the statement given above, it is quite apparent that this action does not invoke any decision upon the question .of the disputed title to the office. Plaintiff says simply: “ I am the actual incumbent in possession of the office to which I claim to be legally entitled; defendant, claiming under a title the validity of which I dispute, is seeking to oust me extra-judicially, in which effort he will have the aid of my fellow-members on the board; and I ask judicial aid to protect my incumbency and possession, until defendant shall, in due course of judicial proceeding, establish his right and title.”
Such an action falls within a well recognized branch of relief by injunction. The doctrine is announced by Mr. High as follows : “ While courts of equity uniformly refuse to interfere by the exercise of their preventive jurisdiction to determine questions relating to the title to office, they frequently recognize and protect the possession of officers de facto, by refusing to interfere with their possession in behalf of adverse claimants, or, if necessary, by protecting such possession against the interference of such claimants * * * And the granting of an injunction in such case in no manner determines the question of title involved, but merely goes to the protection of the present incumbents against the interference of claimants out of possession, and whose title is not yet established.” High on Inj., 2nd Edition, § 1315.
Tins doctrine is in the interest of social peace and order, and conforms to the object and policy of the law in all remedial provisions for the settlement of disputed rights, which always respect and maintain the status quo until the controversy shall be settled in orderly course of judicial procedure.
Plaintiff is undoubtedly the de facto officer, because he “ claims the office and is in possession of it, performing the duties under color of an appointment.” 5 Wait, Actions & Def., p. 7 § 9; Buckman vs. Ruggles, 15 Mass. 180; Com. vs. McCombs, 56 Penn. et. 436; State vs. Howe, 25 Ohio et. 588; Braidy vs. Theritt, 17 Kansas 468.
Such an officer cannot be dispossessed by a third person whose title
■ The law of Louisiana has provided a very effective and summary remedy by which persons legally entitled to assume an office, when opposed by a de faeto officer in possession, may provoke a speedy determination of then' right and, if maintained, the prompt dispossession and ouster of the usurping holder. Rev. Stat., §§ 2593 et seq.
The whole purpose and tenor, of the statute conclusively indicate that the proper party plaintiff in the action provided is the party claiming tlie office as entitled de jure, and the necessary defendant is the officer de faeto who holds and possesses it and who is claimed to be an usurper and intruder.
The contention of the defendant that Guillottc, who is the actual incumbent enjoying possession and exercising the functions of the office, is bound to bring the action of ouster against defendant, or could even be listened to as plaintiff in such an action, unless he liad first surrendered tlie office to Poincy, is totally untenable and inconsistent with the statute.
The case of Cramer vs. Brown, 20 Ann. 272, relied on by defendant, is entirely inapplicable, because tlie statement in the opinion shows that, though the plaintiff therein had been the prior incumbent, the defendant alleged that he had entered upon the duties of the office with the consent of plaintiff and had been in the unmolested exercise thereof from June 16th, 1873, up to the institution of the suit; so that it was an action against an officer de faeto, and should properly have been brought under the intrusion act.
In all suits of this nature which have come before this Court,, the defendant has always been, as he must necessarily be, the officer de faeto, either by prior incumbency or by successful intrusion into, or usurpation of, the office.
The object of the present action is not to oust an usurper or intruder, but to prevent such usurpation or intrusion in advance of judicial determination of the disputed right.
We carefully abstain from any expression of opinion upon the disputed title to this office.
We simply hold that the plaintiff is the officer de faeto in actual incumbency and possession, and that, if lie be an usurper and intruder, the plain course pointed by the law to the defendant is to bring his action of ouster, wherein his right may be recognized and enforced. He cannot take the law in his own hands and, with the assistance of others,
The record shows that plaintiff’s apprehension of disturbance is well founded. It appears on the face of the pleadings that defendant chinned the right to enter into office as a member of the board, and that the remaining members of the board, but for the injunction, would have recognized his right and have admitted him as such member.
Against such action, we think the plaintiff was entitled to relief by injunction, in order to preserve the status quo until the right shall be judicially determined, which is the extent to which the injunction should ’ go.
Abuse of this remedy by officers de facto will be guarded against by the exercise of judicial discretion, which would refuse injunction unless serious showing of apparent right were made, as is certainly done in this case.
In his reasons for judgment, the judge a quo, to some extent, iiasses on the question of title, and his judgment is defective in not inserting the limitation just mentioned which was expressly embodied in the relief prayed for. In this respect it requises amendment.
It is, therefore, ordered and decreed that the judgment appealed from ho amended by reserving the right of defendant, Poinoy, to proceed judicially for the establishment of his claims, and by limiting the injunction to endure only until such judicial determination iu his favor; and, as thus amended, tliat it be now affirmed; appellee to pay costs of appeal.