Dastugue v. Cohen
| Citation | 131 So. 746,14 La. App. 475 |
| Decision Date | 13 January 1930 |
| Docket Number | 11,907 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | DASTUGUE v. COHEN |
Rehearing Refused January 27, 1930.
Writ of Certiorari and Review Refused by Supreme Court March 10 1930.
Appeal from Civil District Court, Parish of Orleans, Division "E". Hon. Wm. H. Byrnes, Judge.
Action by M. F. Dastugue against Walter L. Cohen.
There was judgment for plaintiff, and defendant appealed.
Judgment affirmed.
Edward Rightor, Thos. E. Furlow and P. E. Edrington, of New Orleans attorneys for plaintiff, appellee.
Guion & Upton and K. C. Barranger, of New Orleans, attorneys for defendant, appellant.
There are eleven suits involved in this litigation and they were consolidated for the purpose of trial and decision. Plaintiff sought and obtained an injunction restraining defendant from interfering with him in the exercise of his duties as a member of the Republican State Central Committee and defendant has appealed.
The petition alleges that plaintiff was a de facto member of the Republican State Central Committee for the seventh ward of the parish of Orleans, having been elected at a meeting of the committee on January 31, 1928, for a full term of four years; that he qualified as such and is exercising and performing the duties of such a committeeman; that the defendant is claiming he is entitled to be a member of the State committee and to exercise the duties and functions thereof; and that plaintiff will suffer irreparable injury unless defendant is restrained and prohibited from interfering with him in the performance of his duties "until such time as the disputed right of said office shall have been judicially determined in proper legal proceedings." "That the Republican State Central Committee is, under the laws of the State, and particularly Act 97 of 1922, a part of the government and the members thereof are officers of the law; and the functions of the said Committee and members thereof are set forth in the said act and particularly Sections 25, 29, 30 and 31 thereof; and all of the said duties and functions are exercised by petitioner."
Defendant filed an exception to the jurisdiction of the court ratione materiae and an exception of no cause of action. In his answer, defendant denies that plaintiff is a member of the committee and performing any of the duties and functions as a member thereof but alleges that he (defendant) is the duly elected member of the said committee. The exceptions were overruled and on the merits judgment was rendered in favor of plaintiff enjoining defendant from interfering with him in the performance of his duties and functions "until such time as the disputed right to the said office shall have been judicially determined in proper legal proceedings."
Counsel for defendant has urged the exceptions before this court and argues in support of the exception to the jurisdiction, that courts have no jurisdiction over any controversy with respect to membership of such committee, being purely a political matter, and no pecuniary interest involved; and in support of the exception of no cause of action argues that a member of the Republican State Central Committee is not a public officer entitled to such injunctive relief.
We will first take up the question of jurisdiction.
Section 35, Article 7 of the Constitution of 1921 reads as follows:
* * *"
And section 81 of Article 7 of the Constitution of 1921 reads as follows:
"The Civil District Court for the Parish of Orleans is hereby vested with the same exclusive original civil jurisdiction as that of District Courts throughout the State, as fixed by this Constitution at the time of its adoption, except such as may be vested by it in other courts in the City of New Orleans. * * *"
Under Article 109 of the Constitution of 1879, the district courts had "original jurisdiction in all civil matters where the amount in dispute shall exceed $ 50.00, exclusive of interest." Nothing was said about cases in which no pecuniary amount was involved. Many controversies in which no pecuniary amount was involved but in which rights of the litigants were important found their way into the district courts, and in some of them the defendants excepted to the jurisdiction ratione materiae. Jurisdiction was uniformly maintained, on the equitable principle that every right must have a remedy. This principle was incorporated into the Constitution of 1868 as Article X, into the Constitution of 1879 as Article XI, into the Constitutions of 1898 and 1913 as Article VI, and into the Constitution of 1921 as Section 6 of Article I, as follows:
"All Courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay."
The same principle is expressed in Article 21 of the Civil Code:
In Crescent City Gas Light Company v. New Orleans Gas Light Company (1875) 27 La. Ann. 138, the plaintiff prayed for an injunction to prevent the defendant and its officers and directors from asserting any right or claim to make and vend illuminating gas in the city of New Orleans, from and after the date of expiration of the charter of the defendant. In overruling defendant's exception of no cause of action, the court said:
"The authors of our laws have not seen fit to prescribe forms for every legal demand, and they have not catalogued in the Code of Practice all the actions that may be brought in our Courts; it is, perhaps, well that they have not done so, lest by the omission of a form, substantial relief in some case might be denied a person whose rights have been invaded."
The syllabus reads:
In State ex rel. Mayor v. Judge (1883) 35 La. Ann. 637, citizens and voters of the town of Donaldsonville, alleging that the law required an election to be held at a certain time, that the mayor and town council were required by law to issue a proclamation, give notice and perform other duties with respect thereto, that the mayor and council were neglecting to perform their duties, that petitioners were entitled to vote at said election and that, if the defendants were not required to perform said duties, petitioners would be deprived of their right, applied to the district court for a writ of mandamus. The defendants pleaded to the jurisdiction of the court ratione materiae, because there was no amount in dispute exceeding $ 50, exclusive of interest, as required by Article 109 of the Constitution of 1879. The exception was overruled, and the defendants applied to the Supreme Court for writs of certiorari and prohibition. In denying the application, the court said:
In State ex rel. Garland v. Theard (1893) 45 La. Ann. 680, 12 So. 892, the plaintiff, as custodian of notarial records, sued for the possession of the notarial records of the deceased father of the defendant. In ruling adversely on defendant's plea to the jurisdiction ratione materiae, the court said:
and in the syllabus:
"The original jurisdiction of inferior Courts must be construed with reference to Article 11 of the Constitution, which ordains adequate remedy in the Courts for all legal rights."
In State v. Rost (1895) 47 La. Ann. 53, 16 So. 776, the jurisdiction of the district court, in an...
To continue reading
Request your trial