State ex rel. Perez v. Whitaker

• Decision Date: 07 May 1906
• Docket Number: 15,958
• Citation: 116 La. 947,41 So. 218
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. PEREZ v. WHITAKER, Inspector of Police, et al

41 So. 218

116 La. 947

STATE ex rel. PEREZ v. WHITAKER, Inspector of Police, et al

No. 15,958

Supreme Court of Louisiana

May 7, 1906

Appeal from Civil District Court, Parish of Orleans; George Henry Theard, Judge.

Application by the state, on the relation of Peter Perez, for writ of mandamus to E. S. Whitaker, Inspector of Police, and others. From an order denying the writ, relator appeals. Affirmed.

Robert John Maloney, for appellant.

Henry Garland Dupre, Asst. City Atty., and Samuel Louis Gilmore City Atty., for appellees.

OPINION

BREAUX C.J.

Relator sued for a mandamus in the district court to be directed to E. S. Whitaker, Inspector of Police, the mayor and the Board of Police Commissioners, to compel them to restore him to the office of sergeant of police, and to compel them to set aside all proceedings connected with his removal.

In his petition for a mandamus, relator, as one of his main grounds, in substance, alleged that the Inspector of Police and the board of Police Commissioners acted without authority. Their authority was questioned because relator was compelled to appear before them and defend himself against charges of improper conduct and corruption in office.

The charges were in the first place heard by the Inspector of Police contradictorily with the relator. He (relator) was removed by the inspector. From the order of removal he appealed to the Board of Police Commissioners, authorized by law to hear appeals de novo from the decision of the inspector.

On the appeal before mentioned he appeared before the board, answered, and asked to be reinstated.

Returning to the inspector, we will state that relator's position was that he had the right to suspend a member of the police force, but had no right to remove him. This was urged before the Board of Commissioners also, and the relator further urged before the Board of Commissioners that it was organized for the purpose of trying offenses committed since the promulgation and adoption of the statute, and not to try offenses committed before the adoption of the statute. It was also charged that the offense was committed before the statute was adopted.

The first question, in the order the issues suggest themselves to us, is whether the relator should have moved for a new trial after he had been dismissed by the Board of Commissioners.

It appears that he did not move for a new trial.

In several decisions it has been held as a rule safe to follow that the complaining party should pursue his defense to the uttermost limit of a new trial.

We believe that under the decisions in question the objections urged are fatal to defendant's application for a mandamus.

Our learned brother of the district court prepared an opinion with painstaking care, from which we excerpt the following:

"It being a fact that relator did not apply to the board of Police Commissioners for a new trial, there is an end of his case, and his demand must be dismissed, for the doctrine is now consecrated by jurisprudence that the acts and judgments of a quasi judicial tribunal, like the said board, will not be reviewed by means of the extraordinary writ of mandamus, unless the relator has availed himself of all the remedies before said tribunal." State ex rel. Aucoin v. Police Board, 113 La. 426, 37 So. 16; State ex rel. Klotter v. Police Board, 51 La.Ann. 747, 25 So. 637; State ex rel. McCabe v. Police Board, 107 La. 167, 31 So. 662.

For good reasons stated, the court a qua considered the other grounds upon which relator had based his demand, and for the same reasons, being in the main that the issues were of importance in local administration, we also have considered the said grounds.

The next question is whether the inspector of police has the authority, under Act No. 32, p. 43, of 1904, to dismiss a member of the police force. The question is substantially jurisdictional.

The contention of the relator on this point is that, under Act No. 32, p. 43, of 1904, the power conferred must be expressed; that it is not expressed.

In this respect relator is in error, for the statute conferred upon the inspector the power to fine, suspend, or remove any officer of the police force, "except the superintendent," on written charges, duly sustained. He is specially authorized to investigate and determine whether he should fine, suspend, and, as we understand, whether he should remove an officer. The word "determine" of the statute, taken together with the word "remove" in another section of the same act, cannot be very well construed to mean less than is positively expressed. It is not because in one section the authority of the inspector is limited to a fine or a suspension or a forfeiture of pay that it is not enlarged in another section, which relates to his authority to remove.

These sections must be construed in connection with each other, and the authority which is not given in one section may be conferred in another.

"The omission from paragraph 2, p. 52, of the statute of 1904," we quote from the opinion of the district court with which we agree, "is not suggestive of the purpose of the Legislature to limit the Inspector's authority to the powers therein enumerated, of reprimanding...