Police Jury v. Town of Mansura

41 So. 251 | La. | 1906

Lead Opinion

PROVOSTY, J.

The parish of Avoyelles having voted prohibition, and the town of Mansura, one of the towns of the parish, having later voted in favor of selling intoxicating liquors, certain citizens of the parish brought suit to have it decreed that the result of the parish election was binding, on the town and permanent in its effects,, and that, in consequence, the action of the-town in holding an election was illegal, and-the issuing of licenses to sell liquors would be illegal. They asked for, and obtained,, an injunction forbidding the town authorities-from issuing the licenses.

The defendant town excepted that the-plaintiffs, in their mere quality of citizens, of the parish, were without capacity to stand, in judgment in the suit.

Thereupon, and pending the citizens’ suit, the police jury of the parish filed the present, suit, which is an exact repetition of that of, the citizens, saving that the additional ground", is urged that the town authorities are proposing to issue the licenses without having-first published a budget, as required by law.

This last ground may be dismissed at once from consideration. Plainly the police jury has no standing to litigate the question of whether or not the town authorities have-published a budget.

The defendant town filed an exception off lis pendens, and, that exception having been-overruled, filed a motion to dissolve the injunction, on the ground that, so long as the suit of the citizens was pending and the injunction obtained by -them was not set aside, there could be no danger of the licenses being issued, and that therefore the alleged fears of the police jury in that regard were manifestly groundless; and on the further ground that a second injunction cannot issue in favor of persons alleging a like interest, to restrain the doing of the same act.

From- a judgment sustaining this motion, and dissolving the injunction, the police jury has taken the present appeal.

•The judgment is correct. So long as the first injunction continued in full force, it restrained the town authorities as effectually as a thousand injunctions from the same court might do; hence the second injunction was unnecessary and uncalled for. “The rule is that second injunction will not be granted when first is in force.” A. & E. E. of Law, vol. 16, p. 365.

Judgment affirmed.

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Rehearing

On Rehearing.

On application for rehearing, plaintiff alleges that, the first injunction having now been set aside by this court, it can no longer serve as ground for refusing the injunction in the instant case, and that, consequently, the injunction in the instant case should now be maintained, and that, if this is not done, the defendant will proceed to do the things sought to be enjoined.

Our answer is that, if the judgment appealed from was correctly rendered, it must be affirmed, and not reversed; in other words, that the correctness or incorrectness of the judgment is to be determined from the facts as they were then—as they were when the lower judge acted upon them, not as they are now. And so far as concerns the doing of the acts sought to be enjoined our answer is that nothing prevents the plaintiff from now renewing the demand of the instant suit.

Rehearing refused.