Callan v. Board of Commissioners of Fire Department
| Decision Date | 01 April 1893 |
| Docket Number | 11,191 |
| Citation | 12 So. 834,45 La.Ann. 673 |
| Court | Louisiana Supreme Court |
| Parties | DR. JOHN CALLAN v. BOARD OF COMMISSIONERS OF FIRE DEPARTMENT |
APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.
H. H Bryan and James Timony, for Plaintiff and Appellant.
E. A O'Sullivan, City Attorney, for Defendants and Appellees.
The plaintiff alleges that during the year 1892 he has been the legal acting physician of the fire department of New Orleans.
That the office of department physician is not an annually elective office.
That it is held by the legal incumbent during good behavior; that he has duly performed all the duties of the office, and that no charges have ever been filed against him; that notwithstanding his protest, the Commissioners of the Fire Department have illegally attempted to oust him from the office by electing Dr. George T. Granger in his stead.
The lower court refused to grant the injunction. The following are the grounds of refusal:
"Considering that the power to elect a department physician is invested in the Board of Fire Commissioners by Ordinance No. 5841 Council Series; considering that in the exercise of that power the board has elected Dr. Joseph T. DeGrange to the said office of department physician, in the stead of Dr. John Callan, the present incumbent; considering that, by this action of the board, Dr. Callan has been ousted from office and has ceased to be a de facto officer; considering that this is a proceeding by injunction to restore Dr. Callan to the said office, and to test his title thereto, and considering that an injunction is not the proper remedy to determine disputed title to office," plaintiff's prayer for an injunction is denied.
The plaintiff had been the legal acting physician of the fire department in 1892.
It is not alleged that he had been elected or appointed under prior ordinances.
On December 8, 1891, the Common Council amended ordinance 5614 C.S., by striking out the words "city physician" and inserting the words "department physician" to be elected by the Board of Fire Commissioners.
They named an office by distinctive title and ordained his election.
Under this ordinance the Board of Fire Commissioners elected a "department physician" to succeed the acting physician of the fire department.
The cases of Guillotte vs. Poincy, 41 An. 335; Goldman vs. Gillespie, 43 An. 83, are referred to by plaintiff in support of his application for the injunction.
There is a marked difference in these cases; injunction was applied for to maintain plaintiffs in possessions pending the judicial determination of the disputed rights to the...
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