"On
October 28, 1922, relator, a resident and citizen of the
parish of St. Bernard, state of Louisiana, filed in the
Twenty-Ninth judicial district court for the parish of St
Bernard a petition of which the following is a copy:
"'(1)
At the regular meeting of the police jury of the parish of
St. Bernard on August 3, 1922, petitioner was, by said police
jury, duly elected parish treasurer of the parish of St
Bernard for a term of two years to succeed himself, as will
appear by reference to a certified copy of the proceedings of
said police jury, annexed hereto and made a part hereof;
and petitioner has duly qualified and is now, and has
continuously been in actual occupancy of said office,
exercising the duties and functions thereof.
"'(2)
Petitioner is entitled, under the laws of the state, to
continue in the enjoyment and exercise of the functions of
his said office during the period for which he was so
elected, and to the emoluments thereof.
"'(3)
Notwithstanding the fact that petitioner is the actual
incumbent of said office of parish treasurer of the parish of
St. Bernard, one Henry L. Turner is illegally pretending to
be entitled to occupy said office and to collect the
emoluments thereof, and will, unless restrained by injunction
of this honorable court, exercise or attempt to exercise the
functions of said office and discharge the duties thereof and
receive the emoluments thereof, to the irreparable injury of
petitioner.
"'(4)
Pending judicial determination of the disputed right to said
office, petitioner, as the actual incumbent thereof, is
entitled to be protected in his possession and occupancy of
said office, and the said Henry L. Turner should be enjoined
from doing any act or thing interfering therewith or
infringing petitioner's right to discharge the duties and
receive the emoluments of said office, until such time as the
disputed right thereto shall be judicially determined in
proper legal proceedings.
"'(5)
The emoluments of said office for the remainder of the period
for which petitioner was elected thereto, at $ 100 per month,
the salary fixed by said police jury, will exceed $ 2,000.
"'Wherefore
petitioner prays that a writ of injunction issue herein,
directed to the said Henry L. Turner, restraining,
prohibiting, and enjoining him from exercising or attempting
to exercise any of the functions or duties of
the office of parish treasurer of the parish of St. Bernard,
or in any wise interfering with the enjoyment and exercise of
the functions and duties of said office by petitioner, until
such time as the disputed right to said office shall have
been judicially determined in proper proceedings; that the
said Henry L. Turner be served with a copy hereof and cited
to answer hereto, and that, after due proceedings, there be
judgment in favor of petitioner and against the said Henry L.
Turner, maintaining and perpetuating said writ of injunction,
and further judgment for all costs of this suit.
"'Petitioner
prays for all further necessary orders and decrees and for
general and equitable relief.'
"II.
Relator here reiterates and relies upon all of the
allegations of said petition.
"III.
When said petition, duly verified by relator, was presented
to Hon. Leander H. Perez, judge of said Twenty-Ninth judicial
district court, he declined to grant an order for the writ of
injunction prayed for, and entered on said petition an order
for a rule nisi, as follows:
"'The
above and foregoing petition and affidavit considered, it is
ordered that the defendant show cause on the 28th day of
November, 1922, at 10 a. m., why a preliminary injunction
should not issue in this cause, as prayed for and according
to law.
"'St.
Bernard, La., October 28, 1922.
"'L.
H. Perez, Judge.'
"IV.
Although such right is not given by any statute of the state,
the principle is well established in the jurisprudence of the
state that one presenting a petition clearly alleging his
actual incumbency of an office is entitled as a matter of
right to a writ of injunction to prohibit a mere claimant
from intruding himself into the office until the disputed
right thereto shall have been judicially determined in proper
proceedings, and the judge to whom such petition is addressed
has no discretion to grant or refuse an order for injunction;
and this relator was and is entitled as a matter of right to
have granted the injunction prayed for, and the district
judge had no discretion to grant or refuse an order therefor.
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; State v. Grandjean, 51 La.Ann. 1099, 25 So.
940; Sanders v. Emmer, 115 La. 590, 39 So. 631;
Jackson v. Powell, 119 La. 882, 44 So. 689;
Gleason v. Wisdom, 120 La. 632, 45 So. 530; Gleason
v. Wisdom, 5 Orleans Appeal, 179.
"V.
Should the said claimant, Henry L. Turner, unrestrained by
the injunction for which relator has timely
applied and which the district judge has refused to grant,
succeed in intruding himself into the office of which relator
is the present incumbent, relator would suffer irreparable
injury thereby. Gleason v. Wisdom, 120 La. 632, 636,
45 So. 530.
"VI.
Although the said district judge well knows that the
defendant lives within half a mile of the courthouse, said
judge made his rule on the defendant to show cause returnable
on November 28, 1922, just 31 days from the date on which the
petition was filed and the order made, and this
notwithstanding the provision of the Code of Practice that
the defendant shall have 10 days in which to answer and can
gain more time only by timely and formal application to the
court after service of petition and citation on him.
"VII.
Relator shows that in the parishes of St. Bernard and
Plaquemines, comprising the Twenty-Ninth judicial district,
there have been since 1920 two political factions, one of
which Hon. Leander H. Perez, judge of said district, is the
nominal, if not the actual, leader, and with the other of
which relator is affiliated; that during September, 1922, the
majority in the police jury of the parish of St. Bernard
passed over to the faction of which the judge is leader, by
reason of the removal from the parish and resignation of a
member, whose place was filled by appointment by the
Governor; that on October 5, 1922, the police jury, with its
new majority, discharged practically every official and
employee, to take effect instanter, and replaced them with
adherents of the majority faction; that, in its enthusiasm,
said police jury adopted proceedings declaring relator's
office vacant and appointing Henry L. Turner parish
treasurer, in total disregard of the fact that on August 3,
1922, relator had been re-elected parish treasurer for a
stated and a legal term of two years, and less than three
months of the term had elapsed; that, in undertaking to
discharge relator and appoint his successor, the police jury
stipulated that said successor should not assume the duties
of the office until after the state supervisor of public
accounts had audited relator's books and
his report had been approved by the police jury; and that
said audit is now being made and the report of the supervisor
of public accounts will be in the hands of the police jury
within a few days, with the inevitableresult that said police
jury will thereafter recognize the new appointee, Henry L.
Turner, as parish treasurer, thus injecting him into the
office of which relator is the present incumbent.
"VIII.
All of the facts above set forth are well known to the said
judge, and he must know that long before
November 28, 1922, the return day he has fixed for his rule
nisi, the said Henry L. Turner will, with the assistance of
the police jury, have begun to perform the functions of the
office of parish treasurer, and will on the judge's
return day merely deny that relator is the incumbent and
allege that he himself has become the actual incumbent, the
defacto parish treasurer; and in that event said judge must
know that by his denial of simple justice to relator the
arbitrary and unwarranted process of his court has not only
denied to relator that protection for the preservation of
which courts are established, but has deprived relator of his
rights without a hearing.
"IX.
The refusal of said judge to grant an order for the
injunction prayed for is unwarranted by law or good
conscience, is willful, arbitrary, oppressive, and
tyrannical, and relator's relief from said refusal must
be sought in this honorable court by means of writs of
certiorari, prohibition, and mandamus, and not by appeal,
because he is entitled to the injunction as a matter of
right, and his petition is not addressed to the discretion of
said judge. Relator has no other relief whatever than by
application to this honorable court for said writs, but, even
if other relief could be had, the slowness of ordinary legal
forms herein is so sure to produce such delay 'that the
public good and the administration of justice will suffer
from it,' and the mandamus should issue. Code of Practice
831.
"X.
Relator shows that by formal letters sent by registered mail
on October 30, 1922, to said judge at Pointe a la Hache and
at his home at 360 Pine street, New Orleans, and to the said
Henry L. Turner at St. Bernard, he has given to said judge
and said de...
