Goldman v. Gillespie

• Decision Date: 01 January 1891
• Docket Number: 10,703
• Citation: 43 La.Ann. 83,8 So. 880
• Court: Louisiana Supreme Court
• Parties: G. C. GOLDMAN v. J. M. GILLESPIE

8 So. 880

43 La.Ann. 83

G. C. GOLDMAN v. J. M. GILLESPIE

No. 10,703

Supreme Court of Louisiana

January 1, 1891

APPEAL from the Ninth District Court, Parish of Concordia. Young, J.

Felix P. Poche, Thos. P. Clinton and C. J. Boatner, for Plaintiff and Appellee.

Walter H. Rogers, for Defendant and Appellant.

BERMUDEZ C.J. BREAUX, J., dissents.

OPINION

BERMUDEZ, C.J.

This is exclusively an injunction proceeding.

The fundamental averments upon which the plaintiff relies are simply:

1. That he is a duly commissioned, qualified and inducted member of the Board of Levee Commissioners for the Fifth Louisiana Levee District, and, as such, is in possession of the office discharging the functions thereof and receiving the perquisites thereto attached; in other words, is a de facto officer.

2. That the defendant, who has been illegally commissioned by the Executive to succeed the petitioner as having been removed, unless restrained by injunction, will soon attempt to assume the functions of said office and claim the perquisites of the same in the place and to the exclusion of petitioner.

As a corollary, it is charged that, being the incumbent, petitioner is entitled to a writ of injunction to restrain the defendant from interfering with him in his possession of said office and in the discharge of his duties until after proper proceedings the disputed right to the office shall have been judicially determined.

The prayer is in accord with the averments.

The injunction sought was allowed.

The petition was followed by a supplemental petition. Issue was joined by exceptions and by a general denial, amplified by averments of previous vacancy occasioned by a removal, which denied to the plaintiff the right to aver himself an incumbent.

The exceptions were overruled, and the injunction issued in limine was allowed to continue until the determination of the pretensions of the defendant in a proper proceeding.

From the judgments thus rendered the present appeal was taken.

The exceptions were properly overruled. The petition disclosed a cause of action, and the other matters thereby set up appertained to another future suit, and not to that before the court.

The litigants asserted conflicting titles to the office, raising questions involving the power of the Governor to remove and to appoint a successor.

Whatever the appearances and contentions of the parties were below and here on that subject, it is clear that under the conservative ruling in the case of Guillotte vs. Poincy, 41 An. 333, which is fully applicable to this case, as far as the law is concerned, touching the quid judicandum, the respective title of the contestants to the office of commissioner of the Fifth Levee District can not now be determined.

The facts in that case are not parallel to those in the present one.

There, Guillotte was an incumbent, and feared that the board of which he was a member would aid Poincy in entering upon the discharge of his duties.

Here, Goldman is also an incumbent, but he does not allege any fear that the board will recognize Gillespie.

On the contrary, he proves that the board does not admit the validity of the appointment of the defendant.

Practically, the injunction in the Poincy case against the board was a superfluity, as it issued against Poincy, who could not, while so enjoined, claim any recognition.

Here, it could not at all issue against the board owing to the stand taken by the commissioners.

For the same reason that it was useless in the Poincy case it would have been unnecessary here.

It is this, that although the board may be unwilling to recognize Gillespie, he may induct himself into office by discharging, otherwise than concurrently with the other members of the board, some of the duties which are, under the law creating the board, susceptible of being performed by a commissioner alone in the district of his residence.

By Section 17 of the act creating the board (Act 44 of 1886, p. 63) the care and police of levees devolves of right on the resident commissioner, who is specially authorized in cases of danger or urgent necessity to order out all, or as many as may be necessary, of the road hands of the parish, and cause them to work on the levees, provision being made for their payment.

It is clear therefore that, unless restrained, the defendant may thus assume the functions of levee commissioner; and were the board to change its attitude and to consider him as entitled to recognition, it might admit him to act as one of the board to the exclusion of the plaintiff, who is an incumbent.

It may be well to add that in applications for injunctions in cases of this description judges should require the strongest essential showing, for it is a grave thing in itself for an incumbent to resist the appointment of a successor to him by an Executive; otherwise, upon mere routine allegation, every commission, issued by the Governor, even in proper cases, could easily be for awhile nullified.

Judgment affirmed.

DISSENT BY: BREAUX

BREAUX J.

Plaintiff alleges in his original petition that he was duly appointed and qualified as a member of the Board of the Fifth Louisiana Levee District, and that he is the incumbent on the said board for the parish of Tensas, and that he is entitled to hold that office until the month of May, 1892.

That the defendant holds an invalid commission, and unless prevented by injunction he will soon attempt to assume the functions of that office and claim its emoluments.

That the board has authority to build and maintain levees in the district necessary to protect its lands from floods; also power to levy taxes, borrow money and issue bonds.

That a long line of levees has been built and kept in repair, and thereby property of great value protected.

That the board was making contracts and providing for the construction of several extensive levees and to repair and strengthen a long line of levees in the district, when their acts were impeded by the acts of the defendant in claiming the right of holding the office of commissioner as successor of plaintiff.

That the operations of the board have been paralyzed, and its credit impaired.

That the defendant, unless prevented by injunction from asserting his illegal claim to the office, will cause damage to the petitioner in a stated sum by the depreciation in the value of his immovable property and the threatened destruction of his crop by overflow in the absence of a proper and efficient system of levees in the district.

In this petition for an injunction no act is alleged to have been done by the defendant as an officer, except in general terms.

No particular act is set forth.

He held a commission, and took the required oath.

He could not become a member of the board, for they, in the deliberations at one of their meetings, refused to recognize the validity of his appointment, and formally declared that he would not be admitted nor considered a member.

He could not perform any act in his own district. He was not, under the circumstances, vested with the least authority, for he could not act as an individual officer without some sanction.

The allegations are directed against his possible acts as a member in claiming to act with the board, not that it was apprehended that he, as an individual officer, would assume the care and police of levees devolving on the resident commissioners, nor that the threatened danger or necessity made it probable that he would order out all or as many road hands of the parish as the urgency required.

It would have been entirely useless on his part. His acts would have been ineffectual and nugatory. The board's regulations apply when hands are called out to work. The appointment by inspectors and watchmen is made under these regulations.

All persons serving during the emergency are paid by the board. They may be called...