Sanders v. Emmer In Re Emmer

• Decision Date: 20 November 1905
• Docket Number: 15,798
• Citation: 39 So. 631,115 La. 590
• Court: Louisiana Supreme Court
• Parties: SANDERS v. EMMER In re EMMER

39 So. 631

115 La. 590

SANDERS v. EMMER

In re EMMER

No. 15,798

Supreme Court of Louisiana

November 20, 1905

Application by W. J. Emmer for writ of prohibition to prevent the continuance and enforcement of an injunction issued in a suit commenced by J. W. Sanders against applicant. Application dismissed.

John Robert Davis, for relator. Respondent Judge, pro se.

Burke & Burke, for respondent Sanders.

OPINION

NICHOLLS J.

In his application herein relator averred that he was duly appointed on the 29th day of June, 1905, as a member of the board of health of the corporation municipality of New Iberia; that he was duly commissioned and sworn as such on the 1st day of July, 1905, together with Dr. Adolph Kock and Charles Gougenheim and Victor Aubry, all of whom had been duly appointed and qualified as members of said board of health by the city council elected for the city of New Iberia on June 5, 1905; that at the first meeting of the said board of health appointed as aforesaid relator was duly elected chairman of said board and at once entered upon the discharge of his duties thereof; that on the 22d day of July, 1905, Dr J. W. Sanders, who pretended to have been appointed chairman of the board of health on January 10, 1905, but who had never been commissioned and qualified as either a member or chairman of the said board of health, swore to and obtained a writ of injunction from the judge of the Nineteenth judicial district court, forbidding and restraining relator from exercising and performing the duties of his office -- a certified copy of this said proceeding being hereto attached for reference, together with the commissions and oaths of the said board of health of whom relator was chairman, and also a copy of the minutes whereby relator was appointed a member of the board of health by the said council.

Relator showed that the issuance and enforcement of the said injunction was wrongful and illegal, and should not issue and be enforced against an officer of a municipal corporation, all of which relator claimed to be as was shown by the annexed documents, and that the district court had no jurisdiction in the first instance against the officers, ordinances, appointments, and provisions of a municipal corporation while in the exercise of its legal functions, and had only a supervisory jurisdiction imposing upon acts and ordinances performed by municipal corporations and their officers. The relator excepted to the jurisdiction of the district court for these said reasons, and the exception was overruled, and relator forced to trial, and the injunction perpetuated, regardless of the relator objecting to trial at such an early date, and despite the fact that relator notified the court that he had applied for a writ of prohibition in the premises, and the showing made to the court that he was not prepared for trial, as the case was only three days old from its institution.

Relator showed that, while he was the regularly, legally, and truly elected officer, nevertheless his hands were tied by the injunction, and he was unable to perform the duties of his office or to collect the emoluments thereof, because the pretended incumbent had secured an injunction against relator, wherein he claimed to be in the occupancy of the office. He showed that, while the district court confirmed the injunction, it refused to pass upon the right of either party to the office, and that this was one of the grounds for relator's exception as to the jurisdiction which was filed in the district court, all of which would be shown more fully by certified copies of the proceedings had herein before the district court, together with the minutes of the court, showing what the oral decree of this court was, as it had been given to the clerk of the court in open court.

Relator averred that to permit the mandates of the said injunction to continue in force was to deprive him of his office to which he was duly elected, to defeat the intent of the city council, to maintain in office one who had no shadow of right or title to the office, and to permit him to draw and convert to his own use money to which he had no right and for which he was not sufficiently founded financially to make it possible to ever recover it from him, and all because the district judge usurped the functions and rights of the city council, and issued an injunction against a duly elected city officer at the behest of one who had no right whatever thereto, and whose only claim thereto was that he claimed the office and secured an injunction against the respondent on the ground that he was being disturbed in the exercise of the duties of said office, which he claimed, and the district court ruled that, while it had jurisdiction to enjoin relator from disturbing him in the possession thereof, yet it could not aid relator by passing upon the question of the rightful ownership, thus estopping relator and forbidding him to perform the duties incumbent upon him for several months. The city council of New Iberia had the sole right to elect its board of health. Thus it was the sole and only one to say whom it had so elected as members of said board. Therefore no court of the parish or state could pass legally upon the question of whom it had so elected, and the district court had not the jurisdiction, ratione materiae, to enjoin any one from fulfilling the duties of his office under the municipal government; that no person had the right to apply to and secure an...