State ex rel. Duffy v. Goff

65 So. 481 | La. | 1913

Lead Opinion

On Motion to Dismiss Appeal.

MONROE, J.

Relator prosecutes this appeal from a judgment denying his application for a writ of injunction to restrain Thomas P. Goff and the commission council of the city of New Orleans from interfering with him in the discharge of the functions of the office of recorder in that city, and recalling the alternative writ of quo warranto whereby said Goff was directed to show the authority under which he exercises those functions. The judgment was- signed on May 9th; the appeal was granted, on motion, on May 14th, though the bond was not filed until May 15th; the appeal was made returnable on June 17th and lodged in this court on June 16, 1913,

[1] Defendants move that the appeal be dismissed on the grounds that, under section 7 of Act 45 of 1870 (E. S.), it should have been made returnable in ten days; that, should the court hold this to be a contest for a judicial office, then, under Act 39 of 1873, the appeal should have been applied for, and the bond filed, within three judicial days from the rendition of the judgment, and the appeal made returnable within five days.

Relator contends that the matter is governed by Act No. 106 of 1908, and that the appeal was taken and returned in due time.

Act 45 of 1870 (Extra Session) is a statute entitled:

“An act relative to the Supreme Court, and to regulate the terms thereof, the proceedings therein, appeals thereto, and processes against sureties on appeal bonds.”

It provides that the Supreme Court shall hold its sessions at New Orleans, Opelousas, and Monroe, at certain times, and that appeals from certain parishes shall be made returnable at those sessions, respectively; that (section 7) in all cases in which the right to office is involved, the appeals shall be made returnable in ten days after judgment of the lower court; that (section 8) appeals in criminal cases may be made returnable within ten clays or, at the next term of the court, wherever held; and there are various other provisions, concerning the terms, sittings, and rules of this court, and the hearing of cases on appeal, from which,- considered in connection with the language relating to' appeals, as found in the title, we conclude that the statute is to be regarded as intended, generally, to regulate appeals to and in the Supreme Court, rather than as special legislation upon the subject of appeals in cases involving the right to office, criminal cases, or any other cases belonging to particular classes, and hence is in effect, and so far as they are in conflict, repealed by the similar, general statute, No. 106 of 1908, the title and text of which read:

“An act relative to appeals to the Supreme Court, and providing for return days therein.

“Section 1. * * * That the judges of all the courts throughout the state shall fix the return days in all cases, civil or criminal, appealable to the Supreme Court: Provided, that, the judge shall fix the return day in the order granting the appeal which shall not be less than fifteen nor more than sixty days from the date of the order, except by consent of parties.

“Sec. 2. * * * That all laws or parts of laws in conflict herewith are hereby repealed, and that this act shall take effect from and after its passage.”

[2] It may be here stated that, construing Act 106 of 1908 with Act 92 of 1900, we find no reason to doubt that the act first mentioned applies to appeals coming up from the parish of Orleans (although, as remarked in State v. People’s Fire Ins. Co., 125 La. 986, 52 South. 120, the question had not, up to that time, been determined); the fact being that the only change made by the act of 1908 is the omission of the words “the parish of Orleans excepted,” which are to be found in the act of 1900.

[3] The Act No. 39 of 1873 (amending and re-enacting Act No. 11 of the same session), upon which, also, the appellees rely in support of their motion, provides for contestations with respect to judicial offices, where the person asserting claims to such offices “have been appointed * * * and shall have been confirmed by the Senate and commissioned thereto, or shall have been elected, and, in pursuance of said election, shall have been commissioned.”

The act declares that, if any person pretending to hold such office shall refuse to vacate and turn the same over “to the person so commissioned,” such person, so commissioned, shall have the right to proceed, by rule, to have himself declared entitled thereto; that the rule shall be made returnable within 24 hours, and tried immediately, by preference and without a jury; that an appeal, in such cases, may be taken within three days, and shall be made returnable within five days; that the judgment of this court shall become final after the expiration of two legal days, whether judicial or otherwise.

It is evident, therefore, that the statute has no application here, since the relator was not elected, but is shown to have been commissioned by the Governor, in November, 1912, to fill an alleged vacancy, and, so far as we are advised, has never been confirmed by the Senate. Beyond which, this is not the proceeding by rule which the statute in question contemplates, but purports to be a proceeding under the provisions of the Code of Practice relating to the writ of quo warranto. We therefore conclude that the motion discloses no sufficient grounds for the dismissal of the appeal, and it is accordingly overruled.

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Opinion on the Merits

On the Merits.

SOMMERVILLE, J.

Relator, a citizen of the state, and an elector of the Eifth district of the city of New Orleans, alleges that he was appointed November 15, 1912, by the Governor, to the office of recorder of the Third recorder’s court, city of New Orleans, to fill the unexpired term of B. W. Borne, resigned; that the mayor and commission council of the city of New Orleans, under the Act No. 159 of 1912, have located a recorder’s court in the Fifth district, of New Orleans, and have appointed T. P. Goff as the recorder thereof, but that relator holds and possesses the office of recorder under the provisions of Act No. 45 of 1896, and acts amendatory thereof, and by virtue of article 157 of the state Constitution; that the action of the mayor and commission council in appointing respondent recorder is unconstitutional, null, and void, and that respondent is an attempted intruder into said office; that Act No. 159 of 1912 is unconstitutional because in conflict with articles 50, 31, 319, and 320; and he asks that a writ of injunction issue restraining the mayor, members of the commission council, and Goff from interfering with him; that a writ of quo warranto issue directed to Goff, requiring him to show by what authority he exercises or claims to exercise the office of recorder of the Fifth municipal district of the city of New Orleans; that Goff be adjudged guilty of usurping and attempting to usurp said office; that he (relator) be decreed and adjudged entitled to hold and exercise said office until the electors of New Orleans shall elect his successor; that Act No. 159 of 1912, and specially sections 21 to 26, inclusive, be declared unconstitutional, and to have no effect upon the prior acts of the state relating and pertaining to recorders and recorders’ courts.

Writs of injunction were refused; but a writ of quo warranto was issued addressed to respondent Goff; but, after trial, it was recalled. Relator appeals.

Respondent Goff sets up many defenses in his return; and the other respondents adopted his return as theirs; but it is unnecessary to consider and dispose of them all here.

Relator’s commission, under which he claims office, is of date November 12, 1912, and he is therein appointed “recorder, Third recorder’s court, parish of Orleans.” There is not under Act No. 159, of 1912, p. 270, the present charter of the city of New Orleans; and there was not under Act 45 of 1896, p. 69, the former city charter, as amended by Act No. 109 of 1900, p. 171, and Act No. 84 of 1898, p. 109, a “Third recorder’s court, parish of Orleans.” The charters of that city, and the acts amendatory thereof, established the First, Second, Third, Fourth, and Fifth recorders’ courts in the city of New Orleans. The recorders were and are municipal officers, and not parish officers, although created by the Legislature, and provided for in the Constitution of the state. Since 1898, the Third recorder’s court has had jurisdiction over the Fifth district of New Orleans.

If relator’s commission may be applied to the Third recorder’s court of the city of New Orleans, as established by Act No. 84 of 1898, p. 109, as amended by Act No. 109 of 1900, p. 171, by which acts five recorders’ courts were established, then it (the office) has been abolished by the new city charter (Act No. 159 of 1912, p. 253 [270]), which provides in section 21, that:

“There shall be not less than three police courts in the city of New Orleans, to be known as the recorders’ courts.”

And in section 70:

“That all laws or parts of laws in conflict herewith be, and they hereby are, repealed,” etc.

The same act gives to the commission council the right to locate said courts, and to define the territorial jurisdiction thereof. The council, under this authority, December 2, 1912, located the Third recorder’s court in the Fifth district of New Orleans. And thus the recorder’s court, to which relator claims to have been appointed, passed out of existence. And respondent is discharging the duties of recorder of the Third recorder’s court established under Act 159 of 1912, and located by the commission council of New Orleans on December 2, 1912, to which office relator makes no claim. Relator cannot continue to discharge the duties of his office until his successor has been inducted into office, as the office which he claims has been abolished, and there are no duties for him to discharge.

[4] Relator’s allegation that he is the incumbent of the office is not sustained. We have seen that the Legislature has abolished the office he claims, as it had the right to do. It established in 1912 “not less than three police courts in the city of New Orleans, to be known as recorders’ courts,” to take the places of the five police courts theretofore established by it. .

Relator therefore does not hold the office of “recorder, Third recorder’s court, parish of Orleans,” or “city of New Orleans,” under a former charter of that city, because there is no such office; his appointment was to an office which is now defunct; .the appointment fell with the passing of the office; and respondent is not usurping or attempting to usurp such office, for the same reason. The writ of injunction to restrain defendants “from interfering with relator in the discharge of the duties or functions of the office of recorder of the recorder’s court of the Fifth municipal district of this city during the pendency of this action” was properly refused.

It is held in Long v. Mayor, 81 N. Y. 425, where an officer is elected for a term certain, and before the expiration of the term the office is abolished by statute, he is thenceforth neither an officer de jure nor an officer de facto ; and in Re Hinkle, 31 Kan. 712, 3 Pac. 531, where a township has been abolished by statute, the officers of the township are also abolished, and after such abolition there can be no township officer de facto.

[5] Again, although relator was appointed to ah office by the Governor of the state, under article 157 of the Constitution, the Senate has rejected him. The Governor failed to send relator’s name to the Senate. Article 72. Relator admits that he has not been confirmed by the Senate, which was in session in 1913. He has been rejected; and he has no interest in any office.

In our opinion on the motion to dismiss the appeal of relator in this case, we hold that relator is here “proceeding under the provisions of the Code of Practice relating to the writ of quo warranto.”

[6] Article 868, Code of Practice, provides in part:

“With regard to offices of a public nature, that is, which are conferred in the name of the state by the Governor, with or without the consent of the Senate, or by election, the usurpations of them are prevented and punished in the manner directed by special laws.”

[8] The action provided by statute for trying title to office is ordinarily regarded as exclusive. 29 Cyc. 1417; State ex rel. Denis v. Mayor, 43 La. Ann. 98, 8 South. 893; High on Extraordinary Legal Remedies, § 617.

The commission held by relator was issued by and from the “executive department in the name and by the authority of the state of Louisiana,” and it is signed by the Governor of the state.

The only special laws on the subject of a proceeding or “mandate to prevent an usurpation of office (writ of quo warranto)” are Acts No. 156 of 1868, p. 199, and No. 39 of 1873, p. 78. Relator does not pretend to be proceeding under the latter act.

Section 11 of Act No. 156 of 1868, p. 201, provides:

“That all laws or parts of laws in this state.' touching on the subject of quo warranto, conflicting directly or indirectly with any of the provisions of this act, be and the same are hereby repealed.”

That act requires in sections 1 and 4 that, in a proceeding brought by one, other than the Attorney General or district attorney, against a party who usurps, intrudes into, or unlawfully holds or exercises any public office or franchise within this state, he must be a “person interested.”

Relator is not interested in the office held by respondent. The office to which relator was appointed to, and in which he was interested, has been abolished. He therefore has no right or cause of action.

The case of State ex rel. Saunders v. Kohnke, 109 La. 838, 33 South. 793, was a proceeding against members of a corporation under the articles of the Code of Practice, and not under the intrusion into office act. It was not a suit against one upon whom an office had been “conferred in the name of the state by the Governor, with or without the consent of the Senate, or by election.”

[7] Relator has no interest in prosecuting this suit against respondents; and, were some of the issues raised by him decided in his favor, he could not hold the office he seeks, and he could not be declared to be entitled to the emoluments thereof claimed by him.

[9] “The judiciary is silent until the presentation of some real right in conflict opens its lips.

“Therefore, where a candidate to office applies for a mandamus to compel the appointment of commissioners of election in his behalf, and the application is dismissed, and an appeal taken to the Supreme Court, if, when the case is submitted, the election has been held, the appeal will be dismissed.” State ex rel. Romain v. Board of Supervisors, 49 La. Ann. 578, 21 South. 731.

Judgment affirmed.