State ex rel. Rogers v. Parsons

• Decision Date: 02 December 1907
• Docket Number: 16,794
• Citation: 120 La. 263,45 So. 125
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. ROGERS et al. v. PARSONS, Dist. Atty

45 So. 125

120 La. 263

STATE ex rel. ROGERS et al. v. PARSONS, Dist. Atty

No. 16,794

Supreme Court of Louisiana

December 2, 1907

Appeal from Twelfth Judicial District Court, Parish of De Soto; John Bachman Lee, Judge.

Application by the state, on the relation of John M. Rogers and others for writ of mandamus against J. W. Parsons, district attorney. Judgment for defendant, and plaintiffs appeal. Transferred to the Court of Appeal on condition.

See 44 So. 795, 119 La. 955.

Hall &amp Jack, for appellants.

Pugh Thigpen & Foster, for appellee.

OPINION

MONROE J.

Statement.

Relator alleges that all the members of the board of school directors of De Soto parish were removed from office by the Governor for neglect of duty; that they (relators) were appointed to fill the vacancies so created, and that their appointments were approved by the state board of education; that on June 22, 1907, they assembled for the purpose of organizing, and were enjoined by the removed directors from exercising their functions; that said removed directors are unlawfully holding and usurping the public offices in question, and that it is the duty of the district attorney to proceed against and oust them therefrom, and to have relators adjudged entitled thereto, but that he refuses so to do, though requested, and though relators are otherwise without remedy.

Wherefore they pray that a writ of mandamus issue commanding the district attorney to proceed as stated.

The district attorney, for answer, says that the directors complained of were appointed under section 3 of Act No. 214, p. 407, of 1902, for four years; that, under section 6 of said act, they were removable by the Governor, subject to the ratification of the state board of education, for "incompetency, neglect of duty or malfeasance," but that, by section 3 of Act No. 60, p. 93, of 1906, it is provided that the parish school boards, as now constituted, shall hold office until their successor shall have been elected at the congressional election in 1908; that the Governor and state board are therefore without authority to remove them, and that respondent is without authority to bring suit for that purpose, save upon the request of 25 citizens and taxpayers of the parish.

It is admitted that relators were commissioned and qualified as members of the board of school directors of De Soto parish, La. It is also admitted that the fees respondents would receive during the term of office for which they were appointed would exceed $ 100, and not exceed $ 2,000; that the amount of public school funds they would disburse would exceed $ 2,000; and that said fees will be received and disbursements made by the old members of the board whom the district attorney is petitioned to file suit to oust, unless said members are removed from office. Upon the facts (substantially) as thus stated and admitted the district court rendered judgment in favor of the respondent, and, relators having appealed, respondent moves to dismiss the appeal for want of jurisdiction, ratione materiae, in the court.

Opinion.

It has many times been held by this court that its appellate jurisdiction, in a suit between contestants for public office, was, and is, based upon the salary or pecuniary perquisites attached to such office. Hubert v. Auvray, 6 La. 598; State ex rel. Sternberg v. Lagarde, 21 La.Ann. 18; State ex rel. Creagh v. Judge, 21 La.Ann. 107; State ex rel. Cain v. Judge, 21 La.Ann. 574; State ex rel. Belden v. Markey, 21 La.Ann. 743; State ex rel. Schwab v. Judge, 22 La.Ann. 49; State ex rel. Simmons v. De Vargas, 28 La.Ann. 342; State ex rel. Newman v. Hayes, 32 La.Ann. 1135; State ex rel. Buckner v. Jastremski, 33 La.Ann. 110; Schwartz v. Firemen's Charitable Ass'n, 41 La.Ann. 405, 6 So. 652; State ex rel. Broussard v. Dallas, 116 La. 489, 40 So. 847. And whilst there are, here and there, decisions which do not appear to run with the current, we find no reason to question the soundness of the doctrine thus stated.

Appellate jurisdiction is conferred upon this court by article 85 of the present Constitution in terms of specification and enumeration, and, in order to provide for cases not so specified, but which (in the public interest, to preserve uniformity of ruling among the different courts of the state and adherence to the jurisprudence as established by this court, and to prevent denial of justice to individuals) may require review, the framers of the Constitution have vested the court with a supervisory jurisdiction, which may be exercised without regard to the pecuniary value at issue. There is, therefore, the double reason why appellate jurisdiction not conferred upon the court, in terms, should not be exercised by it; that, not being included in the enumeration, it must be presumed to have been intentionally omitted from the grant; and that neither public nor private interest need suffer from such omission, since in unappealable cases, which require it, the supervisory jurisdiction of the court may be exercised.

The learned counsel for the relator argue that, as the case presented is not a suit between contestants for a public office, it does not fall within the rule stated as established by the jurisprudence. They say:

"We are not here contesting the right to office, but the right to be permitted to do so through suit...