Terry v. Stauffer

17 La. Ann. 306 | La. | 1865

Labattve, J.

J. R. Terry, the relator, states that, on or about the 10th June, 1865, he was in the lawful possession and enjoyment of the office of register of voters for the parish of Orleans, and that he was forcibly dispossessed by O. W. Stauffer, under the pretext that he, said Terry, was legally removed therefrom, and the said Stauffer duly commissioned therefor, by the Governor. The relator states that he is entitled to the said office, claims to be put in possession, and the said Stauffer ordered to deliver said office. He prays that said O. W. Stauffer do show cause why the remedial and conservative writs of mandamus, quo warranto and injunction should not issue.

The defendant answered as.follows, by way of exceptions :

1. That the plaintiff’s proceeding discloses no cause of action or complaint, the defendant not being a municipal officer, but an officer created by the State, and duly commissioned by the Governor, cannot be reached by a qua warranto,

% That, being an officer of the State, a writ of mandamus can only issue hgainst the defendant to compel him to perform some duty devolving off him, from the very nature of Ms office; the plaintiff’s proceedings disclose no such state of facts.

3. That the writ of injunction is a specific writ, for certain cases designated by law, and that the case at bar is not within those designated.

4. That the writs applied for can only issue in the name of the State, while the present suit is simply by J. R. Terry v. C. W Stauffer, and not in the name of the State.

And should these exceptions be overruled, then the defendant pleads a general denial, and avers that he is legally appointed register of voters for the city of New Orleans, etc.

He concludes by praying that the rule maybe set aside, and that plaintiff pay costs.

The court sustained the exceptions, and the relator took this appeal.

1. This is not a case for the writ of quo warranto, upon the face of the petition. According to Art. 867 O. P., the writ of quo warranto is an order rendered in the name of the State, by a competent court, and directed to a person who claims or usurps an office in a corporaiion, inquiring by what authority he claims or holds such office. Art. 868, 0. P. This mandate is only issued for the decision of disputes between parties, in relation to the offices in corporations, as when a person usurps the character of mayor of a city, and such like.

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, the usurpations of them are prevented and punished in the manner directed by the penal code.

Article 869 C. P. A mandate to prevent the usurpation of an office in a city or other corporaiion, may be obtained by any person applying for it.

The Article 870 C. P. provides that the court, after having declared the party not qualified, shall direct the corporation to proceed to a new appointment.

The office of register of voters is created by the act of 1856, section 1, which gives the Governor the appointing power, by and with the advice of the senate; therefore, it is clear that the register of voters is a State officer, and not such an officer as contemplated by the provisions of the articles above quoted.

2. The petition does not show that the relator is entitled to the writ of 'mandamus, wMeh, according to Art. 829 O. P. is an order issued in the name of the State, by a tribunal of competent jurisdiction, and addressed to an individual or corporation, or court of inferior jurisdiction, directing it to perform some certain act, belonging to the place, duty, or quality With which it is clothed.

The relator does not ask that the defendant be directed to do some certain act; but he demands, on the contrary, that he be forbidden to perform the functions of his office as Register of voters.

3. The injunction prayed for presents some more serious difficulties.

An injunction is said to be a mandate obtained by plaintiff, prohibiting one from doing an act which, he contends, may be injuriotis to him, or impair a right which he claims. O. P. Art. 296. It is a conservatory act — an equitable remedy — which a party may obtain provisionally, on bringing his action (O. P. Art. 208); and, in order to obtain it, the party applying- for the same must state under oath the facts which, according- to his belief, render an injunction necessary. O. P. Art. 804. The judge must look to the facts alleged and sworn to, and, in the exercise of his judgment, see if the facts are sufficient to require Ms interference to prevent an injury to the applicant, or an act that might impair his right. The judge below said : “With regard to'the injunction, I am of opinion that this case is not one of those in which the writ is authorized by law. ” We are not prepared to say that our learned brother erred. The defendant is exercising the functions of register of voters in and for the parish of Orleans ; he is, under the law, a State officer. The relator claims the office, and, at the same time, prays that, during the pendency of this suit, the said O. W. Stauffer be enjoined from acting as register of voters, as aforesaid; but we see in his petition no facts sworn to, going to show that he would suffer an injury, or that his right would be impaired, by said Stauffer continuing to exercise his official functions pending the writ. It should require the strongest showing, on the part of a private individual, to induce a judge to enjoin a State officer from performing his functions; and we are not prepared to say that it can be done in any circumstance.

The effects of such injunction would reflect upon and affect materially the government, and might stop, in certain cases, the governmental machinery.

We are of opinion that the District judge did not err.

The judgment appealed from is affirmed, with costs.