City of Gretna v. Bailey
| Decision Date | 13 November 1916 |
| Docket Number | 22240 |
| Court | Louisiana Supreme Court |
| Parties | CITY OF GRETNA et al. v. BAILEY, Secretary of State, et al. In re STATE ex rel. BAILEY, Secretary of State, et al |
L. E Hall, of Baton Rouge, and Paul A. Sompayrac, of New Orleans for plaintiffs.
A. V Coco, Atty. Gen. (C. A. Buchler, of New Orleans, of counsel) for defendants.
The present charter of the city of Gretna, in the parish of Jefferson, is sought to be abrogated, and a new charter substituted to it, by Act 2, p. 4, of 1916. Section 41 of this act reads:
'This act shall not become operative in any respect unless it is approved by a majority of the qualified [voters] of the city of Gretna, voting at a special election held for that purpose under the general election laws of this state, which special election shall be held and conducted under the supervision of the board of supervisors of election, on the third Tuesday in September, 1916.'
This election was held, and the returns transmitted to the secretary of state, as is required by the general election law to be done in ordinary elections.
Thereupon the mayor and councilmen of Gretna holding office under the existing charter, and certain citizens of Gretna, filed suit at the seat of the state government, in the parish of East Baton Rouge, asking for an injunction against the secretary of state and the state auditor to prevent them from tabulating said returns and promulgating the result, and praying further that said election be annulled.
The grounds of the suit are that said statute is unconstitutional, and that said election was irregularly held.
A rule nisi issued to said officers to show cause why said injunction should not be granted; and, after hearing on this rule, the injunction was granted. The said officers then filed in this court the present application for the writs of certiorari and prohibition.
As a general rule these writs do not issue in appealable cases, and the present case is appealable. An exception to that rule is recognized, however, in cases where the trial court is without jurisdiction. Iberia R. R. v. Morgan R. R., 129 La. 492, 56 So. 417. We can inquire, therefore, on the present application, into the question of jurisdiction.
But our inquiry must be limited to that question, so that the pleas of prematurity, nonjoinder of parties defendant, want of authority in plaintiffs to institute and prosecute said suit, and no cause of action, which were filed below, and are again urged here, have no place in the discussion. They go to the merits, and not to the question of jurisdiction.
On the question of jurisdiction, it is very properly said that the ordinary jurisdiction of courts of law does not extend to the trial of contested election cases. In so far, therefore, as the said suit might have for its object the contesting of said election, we should have to hold that the said court has no jurisdiction of it, for no law has been pointed out to us conferring such jurisdiction, and we know of none.
But it is not so clear that the said suit has in reality any such object. At any rate, its main object is different. It is to prevent said state officers from doing a thing which they are alleged to be unauthorized to do, and the doing of which, it is alleged, will be injurious to the plaintiffs.
In this phase of it, the suit is wholly and exclusively against those state officers, and against nobody else; and it is against them in their official capacity exclusively. Such being the case, we do not see why it should not have been brought against them alone, and in the court having jurisdiction of suits brought against them in their official capacity, as the court of East Baton Rouge is recognized to be.
The tabulation and publication of these returns is unquestionably a mere ministerial function, and on the broad question of whether injunction will issue to a state officer in the matter of a purely ministerial function, see, affirmatively, Board of Liquidation v. McComb, 92 U.S. 531, 23 L.Ed. 623.
That injunction is the proper remedy to restrain an officer from acting under an unconstitutional statute, see 22 Cyc. 884; Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1, 37 Ann. Cas. 1915C, 200.
In a word, on the allegations that the said enjoined acts are unauthorized, because of the unconstitutionality of said statute, and...
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