State ex rel. Kuhlman v. Rost

47 La. Ann. 53 | La. | 1895

The opinion of the court was delivered by

Nicholls, C. J.

The proceeding of Cambre in the matter of the injunction sued out, which has been brought before us in this case, notwithstanding the use of the name of the State in its title, is a private suit of Cambre against Kuhlman. Its object, however, is not so much to stay the payment to Kuhlman of any moneys which, but for the injunction, would be made to him under color of office as a police juror, as through the arm of the judiciary to direct, control and regulate the performance of public duties by officers of another department of the government. When such a result is sought to be brought about, pleadings of an exceedingly specific character, showing exceptionally strong facts in aid of the relief asked, must be presented to a court to justify its assuming jurisdiction. Mere conclusions of law or conclusions of ultimate facts will not suffice,, nor should the pleader take anything by failing to bring affirmatively to the knowledge of the court the condition of affairs which he must be aware would eventually be advanced as those upon which the defendant was basing and grounding the claims and pretensions under which he was acting. It is his duty in such a proceeding to state, as far as possible, the whole case, to the end that the court may be completely advised in the premises. Nothing should be held back which, if known to the court, would probably influence it in determining the question of its own powers. Usually vague and general pleadings are not fatal to a demand. Imperfect statement of a. cause of action is ordinarily remedied by amendment on exception taken, but in matters of the present character we are of the opinion that the pleadings in the case affect the jurisdiction, and that a. court should not act at all, unless a cause of action is plainly set out, and is manifest on the face of the papers, and we are of the opinion that it is authorized of its own motion, and in spite of the allegations of the petition for the injunction, to take cognizance of matters of which it can legitimately take judicial notice which enter as factors in determining the question of its own powers and duties. The court should be first assured of its own jurisdiction. If a District Judge should inadvertently have assumed it under circumstances •where he should not have done so, we have the power, and it is our ■duty under our supervisory control over the lower courts, to set :aside the orders given by him. It is of the utmost importance that 'the different departments of the State should not clash, but that each 'should pursue its legitimate functions free from interference from the other. That there may be cases of such a character as to force the judiciary to the discharge of its own duty to review, to declare null and void and to set aside acts of the Legislature or Executive Departments is beyond question; but as we have said the occasion which would require it to do so at the instance of an individual citizen by way of injunction which would at once ex parte restrain and change (temporarily at least) the course which public affairs would naturally have followed but for the injunction must be clear and patent.

Private interests should yield to those of the public. In the ease at bar it is clear that Cambre, after having been appointed, commissioned and qualified as a police juror for the parish of St. Charles by the Governor, was subsequently removed by him, and the relator, Kuhlman, appointed in his place. That simultaneously two other police jurors were removed by the Governor and others appointed in their places. That the three new appointees qualified under their commissions, and presenting themselves with their commissions and oaths of office to the remaining police jurors, they were recognized by the latter as police jurors, and a meeting of the police jury was organized, in which the new appointees participated, selecting or electing a supervisor of election at such meeting, and that the injunction which was issued was applied for and granted subsequent to this meeting.

In his petition for injunction, Cambre alleges that “one B. J. Kuhlman illegally and wrongfully claims the office of police juror” (to which he had himself been appointed), but he does not inform the court, as he should have done, that Kuhlman claimed the office under a commission from the Governor of a date subsequent to that of Ms own commission, and that the subsequent commission was • issued by reason of his own removal from office by the Chief Executive; and while he alleges that Kuhlman, in conjunction with •others, did unlawfully meet and assemble in the parish of St. Oharles on the 10th of October, 1894, and did endeavor to transact business as members of the police jury of St. Oharles, he does not inform the court that the persons with whom he acted in conjunction were two of the police jurors of the parish of St. Oharles, holding by undisputed title, and two other-persons, who, having been appointed by the Governor as police jurors, had qualified under the commissions issued to them, and who were recognized, as was Kuhlman, by the older members as police jurors of the parish. He avers that “those parties did unlawfully meet and assemble as police jurors,” but he does not state how or why the meeting was unlawful. The ground for that attack is, we infer, to be found in the allegation that the police jury, when it had adjourned before, had adjourned to its next regular meeting, and that he had not been notified of a called meeting, nor notified of his having been removed from office as a police juror. No other reason seems to have been assigned. Tb.ere is no charge made in the petition that the Governor was without power or ■authority to remove a police juror. If any such claim was intended to be advanced, it was merely inferentially and consequentially advanced under the allegation that, by virtue of his appointment and confirmation, his term of office did not expire before the next general election, to be held on the first Tuesday next following the third Monday in April, 1896, and we do not think this indirect general allegation fairly raised an issue as to the Governor’s legal or constitutional power of removing a police juror from his office.

The issue that he tendered was rather that the Governor had acted improperly, and without cause, than that he had acted without authority — an issue which (granting the power to remove) was one which should not have been raised, and could not be passed upon by the court. We take judicial notice of Act No. 125, Ex. Ses. of 1877. That act has not been repealed. Whether or not it has become inoperative by reason of the adoption of the Oonstitution is not a question to be lightly raised, and on general indirect allegations, nor to be raised by the court itself. This statute has been constantly acted upon by the executive of the State since 1880. The official action of the head of the Executive Department is presumed to be within the scope of his authority. This presumption is sufficiently strong under the statute cited to entitle a person who has qualified as a statute officer in an office, the appointment to which is vested in the Governor prima facie, to possession of the office. If he is to be kept ont of possession at all, it must be, as we have said, under exceptional circumstances, specially set forth, and under a direct issue as to the power of the Governor. It is shown in this case that not only had Kuhlman been appointed and qualified as police juror, but he had been recognized as such by tbe other members of the jury, and that together they had organized and held a meeting of that body. Kuhlman had actually gone into possession of the office, and the allegation that Cambre feared he would seek to take forcible possession of the same is therefore without foundation. No action seems to have been taken by the jury after its adjournment until the meeting in which Kuhlman participated, therefore no act of possession of the office by Cambre is shown after his removal by the Governor. If the Governor had the power to remove him, there was no necessity for official notification to him of the removal to bring it about. The removal of itself operated a divestiture of the office, at least for the purposes of this suit. Had intermediate action taken place before notice in which Cambre had participated in ignorance of his removal, and were the validity of action taken at that time and under these circumstances contested, a different question would arise. If Cambre was removed from office he was not entitled to notice of a called meeting of the jury. The legality of the police jury as a body, as it met at the meeting in which Kuhlman participated, and the legality of the meeting, can not be collaterally raised or disposed of in the injunction suit.

We are of the opinion that the District Judge in taking jurisdiction in the matter of the petition praying for an injunction, and in issuing the injunction he did, erred, and that when the want of jurisdiction was called to his attention and urged, he should have at once discharged the injunction. He could have done so of his own motion. There was no necessity for action to be taken contradictorily with Cambre.

In deciding this case we take occasion to refer to the views expressed by the Supreme Court of Alabama in Beebe vs. Robinson, 52 Ala. 66, and to the case of Cameron vs. Parker, 38 Pac. Rep. 14 et seq.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the writ of prohibition which issued in this matter be perpetuated, and that the injunction granted by the District Judge of the Twenty-first Judicial District Court, of the State of Louisiana for the parish of St. Charles, in the matter of L. A. Cambre vs. B. J. Kuhlman No. 80 of the docket of that court, be and the same is hereby set aside and discharged.

Rehearing refused.