State ex rel. Porterie v. Smith

• Decision Date: 01 May 1935
• Docket Number: 33396
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. PORTERIE, Atty. Gen., et al. v. SMITH et al

162 So. 413

182 La. 662

STATE ex rel. PORTERIE, Atty. Gen., et al. v. SMITH et al

No. 33396

Supreme Court of Louisiana

May 1, 1935

Rehearing Denied May 27, 1935

Gaston L. Porterie, Atty. Gen., George M. Wallace, Asst. Atty. Gen and F. A. Blanche, of Baton Rouge, for relators.

J. O Bouanchaud, Paul G. Borron, and Benjamin B. Taylor, all of Baton Rouge, for respondents.

HIGGINS, Justice. O'NEILL, Chief Justice and ROGERS, Justice, concur. ODOM, Justice, dissenting.

OPINION

HIGGINS, Justice.

Relators, the Governor and the Attorney General of the state of Louisiana, the police jury of the parish of East Baton Rouge, and thirteen persons who allege that they are members of the police jury of the parish of East Baton Rouge, under appointments by the Governor of this state, in accordance with the provisions of Act 22 of the Third Extraordinary Session of the Legislature of the state of Louisiana of 1934, obtained a temporary restraining order from the district judge, enjoining nine other members of the police jury of the parish of East Baton Rouge, the sheriff of that parish, and his deputies, the district and assistant district attorneys of the Nineteenth Judicial District, the legal advisers of the police jury, and the treasurer-clerk of that body, who is said to have been appointed to that office by nine defendant members, or a minority, of the police jury, from interfering with the lawful and orderly functioning of the police jury and the alleged majority members thereof.

On the rule nisi, the district judge, in a written opinion, refused to grant a writ of preliminary injunction to the relators on the ground that their joint petition failed to allege a right or cause of action, and recalled the rule nisi and the temporary restraining order.

Relators then applied to this court for writs of certiorari, prohibition, and mandamus. We granted the writ of certiorari and made it returnable on April 15, 1935, and ordered the respondents, at the same time, to show cause why the writs of prohibition and mandamus and the relief sought by relators should not be granted.

In response to the rule, the trial judge filed a written return and the record in the case, and respondents also made a joint written return.

Plaintiffs, in their petition for the writ of injunction, alleged that the Governor of the state appeared by virtue of the mandate contained in section 14 of article 5 of the Constitution of 1921, requiring him, as chief executive of the state, to have the laws faithfully executed and obeyed; that the state of Louisiana appeared through its Attorney General, who is authorized under section 56 of article 7 of the Constitution of 1921, to represent the state herein; that the state is interested because it has a proprietary and pecuniary interest in the administration of the fisc of the parish of East Baton Rouge, a political subdivision of the state, to which body the state has delegated certain police powers and other powers of the state within the parish, and is further interested in maintaining order and having its laws executed and obeyed; that the police jury of the parish of East Baton Rouge appeared by virtue of its resolution adopted at a meeting held on January 24, 1935, a certified copy of which is annexed to and made part of the petition; that the thirteen individual petitioners appeared as duly appointed, qualified, and acting members of the police jury of the parish of East Baton Rouge, having been appointed and commissioned by the Governor, under the provisions of Act No. 22 of the Legislature of the Third Extraordinary Session of 1934, and qualified by taking their oaths and possession of their offices and performing their duties assuch, for the respective wards of the parish that they represent; that the thirteen appointed police jurors, together with four previously elected members of the police jury, being seventeen in number, constituted a majority of the twenty-six elected and appointed members thereof; that they met at a special meeting on January 24, 1935, at 10 o'clock a. m., and adopted certain resolutions and ordinances, reorganizing the police jury, certified copies of which resolutions, ordinances, and minutes of the meeting are attached to and made part of the petition. These documents show that the meeting was called in accordance with section 2731 of the Revised Statutes, after due notice to the nine elected or minority members of the police jury; that the defendant Matt G. Smith was removed as president of the police jury, and plaintiff Dr. Clarence A. Lorio elected and installed in his stead; that the offices of clerk of the police jury and parish-treasurer were combined into one office, removing Mrs. C. M. Bomar from the former office and L. P. Amiss from the latter office, and then electing Mr. Amiss as the clerk-treasurer; that Mr. Amiss immediately took his oath and gave bond as required by law and then took physical possession of his office, excepting books, records, and accounts of the police jury that had been sequestered in another case, and invoices of accounts payable by the police jury that were in the possession of Mrs. Bomar; that the finance committee was abolished and a new one appointed in its stead; that other committees were abolished and new committees created; that the funds of the parish should be budgeted and paid out by warrant, voucher, or check signed by the chairman of the finance committee and by the treasurer-clerk; that the employees of the police jury were dismissed, and the newly elected president authorized to appoint others; that E. L. McGee was appointed as custodian of the courthouse; that only the salaries of deputy sheriffs appointed in accordance with the provisions of section 3542 of the Revised Statutes, as amended by Act No. 27 of the Third Extra Session of 1934 should be paid out of the parish treasury; that the sheriff and his deputies were relieved of any duties in connection with the custody of the courthouse and the records of the police jury; that the Attorney General and his assistants were appointed to act as counsel for the police jury, the district attorney and his assistant being recused for having previously, in a letter to the nine elected or minority members of the police jury, expressed the opinion that Act No. 22 of the Third Extraordinary Session of 1934 was unconstitutional, and that the elected police jurors should refuse to recognize the newly appointed police jurors and prevent them from qualifying and taking their office.

Petitioners also alleged that the said nine or minority members met in a special meeting at 2 o'clock p. m., January 24, 1935, or after the above referred to meeting, and passed certain resolutions, certified copies of which, and the minutes of the meeting, are annexed to and made a part of the petition. These resolutions and the minutes of the meeting show that, based upon the written opinion of the district attorney to the effect that the statute under which the plaintiffs were appointed as police jurors was unconstitutional, the nine elected police jurors considered that the Governor had illegally appointed the thirteen members of the police jury and that by qualifying they had illegally intruded themselves into office; that, as elected police jurors, it was their duty to protect and maintain the right of local self-government to the people of their parish against such unlawful intrusions; that the district attorney, as their legal adviser, was instructed and directed to bring appropriate action in the courts to have the appointment of these thirteen members declared illegal, null, and void, and to have them ousted from office, and to take such further and other legal action as may be necessary in the premises; that the thirteen appointed members, at a special meeting held this day, intruded themselves into office and have appointed L. P. Amiss treasurer-clerk, and that he has accepted the appointment, thereby vacating the office of treasurer of the police jury for the parish of East Baton Rouge; that under the provisions of Act No. 122 of 1924, the office of treasurer and clerk was consolidated and Mrs. C. M. Bomar was appointed to that position; that Matt G. Smith (president) one of the defendants, was authorized and directed to notify the fiscal agents and depositories of the police jury not to honor any checks of the police jury unless they were signed by the president, Matt G. Smith; that E. L. McGee be notified at once that he was dismissed as an employee of the police jury and his authority in connection with the courthouse building and grounds was revoked; and that the sheriff be notified that he was in full charge of the courthouse building and grounds.

The petition further alleges that the resolutions adopted by the minority members of the police jury were illegal, null, and void, because there was less than a quorum of the police jurors present when they were adopted, and because they were not adopted viva voce, as required by section 7 of article 8 of the Constitution of 1921; that on January 8, 1935, at a regular meeting of the police jury, a resolution was adopted certified copies of which, together with the minutes of the meeting, were annexed to and made a part of the petition. These exhibits show that the meeting was attended by twelve of the thirteen elected police jurors who, by a vote of ten to two, adopted the resolution; that the resolution shows "a so-called law was passed," at the recent extra session of the state Legislature, although vigorously opposed by their representatives; that the law authorized the Governor to appoint thirteen additional members of the police jury for the parish of East Baton Rouge; that, if the additionally appointed members are seated, the duly...