38 La. Ann. 630 | La. | 1886
The opinion of the Court was delivered by
This suit is brought by the president, on behalf of the-police jury, for the purpose of enjoining the city council of Monroe, and other parties designated as “The Business Men’s Association,”' from usurping the exclusive power and privilege of the police jury of establishing and regulating public ferries within the parish, and for damages occasioned by the defendants by means of a free public ferry which they have established on the Ouachita river opposite Monroe.
The judgment appealed from was in favor of the city council of-Monroe, and against the other defendants, perpetuating the injunction and condemning them to damages in the. sum of two hundred and fifty dollars.
On appeal the defendants composing the “Business Men's Association” assign as error that the president of the police jury is without right or warrant in law to stand in judgment for the parish of Ouachita. His counsel replies that the defence comes too late and that it should have heen pleaded in limine.
The objection is not levelled at the capacity of the president, hut at the latter’s authority to stand in judgment for the police jury.
The general denial put at issue the allegation in plaintiff’s petition that he was specially authorized to institute this suit in the name and on behalf of the police jury, hence there was no cause for an exception in limine, but if on trial the alleged authority was not proved it is clear on reason as well as authority that the omission can be invoked as a defence by an assignment of errors on appeal. Flower vs. O’Connor, 7 La. 196; Notrebe vs. McKinney, 6 Rob. 13; Hyde et al. vs. Brashear, 19 La. 402; Brunette vs. New Orleans. 14 Ann. 120.
Police juries, like all other corporations created under our laws, are artificial beings or persons, who can act only in the mode prescribed, by the law creating them, or in the manner specified in their organic-law or character. Bright vs. Metairie Cemetery Association, 33 Ann. 58, and authorities therein cited.
We know of no law, and we have been referred to none, which vests tile general power in the president of the police jury to act for, to bind or represent the body in any contract or judicial proceedings without special authority thereto from the corporation.
But the contrary doctrine flows from the very nature of the powers- and duties conferred on' and required of such corporations by the laws creating them.
No officer of such corporations can, without special authority, legally represent the body before the courts or stand in judgment for the same. Helluin vs. Maurin, 8 La. 111; Capmartin vs. Police Jury, 19 Ann. 448.
A suit instituted by the president, in behalf of the police jury, without special authority thereto, could create no legal effects binding
It follows, therefore, that in the instant case, in the absence of proof óf legal authority in the president to stand in judgment for the police jury, the judgment rendered below against these defendants would be no bar to a future action by tlie parish against the same parties and for the same cause of action.
This conclusion seems to be conceded by plaintiff’s counsel, for in his petition he distinctly alleges that the president of the police jury -“is specially authorized to institute this suit;” but the record discloses that he failed to make even an attempt to prove the authorization.
In his oral argument he referred as proof of sueh authorization, to the affidavit of plaintiff in support of the injunction prayed for, but be could not have been serious in sueh a contention.
Police juries act only by ordinances or resolutions, and no parol testimony would be admissible in proof of either.
'These considerations lead to a judgment of non-suit against plaintiff.
It is, therefore, ordered, that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that plaintiff’s demand be rejected and the action dismissed as in case of non-suit at his costs in both courts.
