Jackson v. Powell

• Decision Date: 08 August 1907
• Docket Number: 16,722
• Court: Louisiana Supreme Court
• Parties: JACKSON et al. v. POWELL et al. In re POWELL et al

44 So. 689

119 La. 882

JACKSON et al. v. POWELL et al.

In re POWELL et al

No. 16,722

Supreme Court of Louisiana

August 8, 1907

Application by R. B. Powell and others for writs of certiorari and prohibition to review an order of a trial judge refusing to set aside an application for an injunction restraining relators as a new school board of the parish of De Soto, appointed by the Governor, from entering upon the discharge of the duties of such office, which were being exercised by A. F. Jackson and others, constituting an old board, all of the members of which had been removed by the Governor. Dismissed.

Walter Guion, Atty. Gen. (Hall & Jack, of counsel), for relators. John Bachman Lee, in pro. per. (Richard Andrew Frazier, James Haskins Sutherlin, and Pugh, Thigpen & Foster, of counsel) for respondent Lee.

PROVOSTY J. BREAUX, C.J., concurs in the decree. NICHOLLS, J dissents.

OPINION

PROVOSTY, J.

In the exercise of power apparently conferred upon him by a statute the Governor removed from office the members of the school board of the parish of De Soto, and appointed a new board. The new board qualified by taking the oath of office, and "were in the act of assembling and entering upon the discharge of the duties of said office," when the old board sued out an injunction. This was upon the authority of the cases of Guillotte v. Poincy, 41 La.Ann. 333, 6 So. 507, 5 L.R.A. 403, Goldman v. Gillespie, 43 La.Ann. 83, 8 So. 880, Wheeler v. Board of Com'rs, 46 La.Ann. 731, 15 So. 179, and Sanders v. Emmer, 115 La. 590, 39 So. 631, where this court held that the incumbent of an office who is unwilling to surrender possession cannot be dispossessed by the exercise of the power of removal and the appointment of a successor, but only by an intrusion into office suit, and may, when sought to be dispossessed in the former mode, protect his possession by an injunction. The new board made an ex parte application to the judge to set aside the injunction as having been issued without authority, and upon his refusal to entertain the application, unless it was regularly filed and set for a hearing, they applied to this court to vacate the said order for injunction, and obtained from this court an order to the district judge and to the old board to show cause why writs of certiorari and prohibition should not issue. The application is sought to be supported by the cases of Kuhlman v. Judge, 47 La.Ann. 53, 16 So....