State ex rel. Sanchez v. Dixon

• Decision Date: 19 November 1941
• Docket Number: 2301.
• Citation: 4 So.2d 591
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE EX REL. SANCHEZ, DIST. ATTY., ET AL. v. DIXON.

4 So.2d 591

STATE EX REL. SANCHEZ, DIST. ATTY., ET AL. v. DIXON.

No. 2301.

Court of Appeals of Louisiana, First Circuit

November 19, 1941

Jos A. Loret, Asst. Atty. Gen., for appellant.

D J. Sanchez, Dist. Atty., of Baton Rouge, for appellees.

OTT, Judge.

On May 20 1941, the Governor of this State, acting on an interpretation by the Attorney General's office of Act 12 of the Extra Session of 1940 relative to the election of additional police jurors in those wards of parishes showing an increase in population to a certain extent, appointed four additional police jurors for the Parish of East Baton Rouge, namely Millard W. Dixon, Ward 1, Edgar B. Allen, Ward 3, Scott A Kleinpeter, Ward 6, and Gordon C. Ogden, Ward 9. Commissions were issued to these appointees and they qualified by taking the oath of office and began the discharge of their duties as members of the police jury of said parish.

In June, 1941, a suit was filed in the District Court of East Baton Rouge Parish against the District Attorney by several citizens, taxpayers and qualified voters of the parish seeking to have a mandamus issue against said District Attorney commanding him to institute intrusion into office suits against the above-named appointed police jurors to have them ousted from office on the ground that the Governor had no authority to appoint them and, consequently, they were illegally usurping, holding and exercising the functions of said offices. A judgment was rendered in that suit by Judge Holcombe, in which a mandamus was issued, commanding the District Attorney to institute ouster proceedings against said appointees.

In compliance with that judgment, the District Attorney filed separate suits against all four of said appointees and made parties plaintiff the citizens, taxpayers and qualified voters at whose instance and request the ouster proceedings were brought. These four suits were consolidated in the lower court for the purpose of trial, but separate judgments were rendered and separate appeals taken in each case. The cases involve only questions of law, and what is said in this opinion will apply to all cases as the issues and pleadings in all four cases are practically the same, except as to the case against Ogden where an additional ground is urged as to the illegality of his appointment which will be mentioned hereafter. The trial court rendered judgment in favor of relators declaring the appointment of these four additional jurors unauthorized and decreed that they were illegally usurping, intruding into and holding said offices. From this judgment ousting them, they have appealed.

The legality of the appointment of these four additional police jurors is attacked on the ground that the Governor had no authority to make the appointment. The first two sections of Act 12 of the Extra Session of 1940 read as follows:

"Section 1. Be it enacted by the Legislature of Louisiana, That at the general State election to be held in April, 1940, and at each general State election thereafter, there shall be elected as many police jurors for each ward of each parish in this State, by the qualified voters of said wards, as provided by law, the Parish of Orleans excepted.

"Section 2. For each parish ward, there shall be elected, in the manner provided by law, in addition to the police juror to which the ward is entitled, one additional police juror for each ten thousand (10,000) inhabitants which the said ward contains, said apportionment to be based upon the last preceding United States census; also one additional police juror for each additional ten thousand (10,000) inhabitants, or part thereof in excess of seven thousand five hundred (7,500), to be selected from the resident voters of the ward. Provided that this section shall not apply to parishes having a population of less than 50,000 inhabitants."

It is admitted that the Parish of East Baton Rouge has a population of more than 50,000 inhabitants; that the United States census released in January, 1941, showed that the first ward of said parish has a population of 19,022, the third ward 21,971, the sixth ward 12,708 and the ninth ward 7,573. At the time the census figures were released, all positions in the police jury for these four wards had been regularly filled at the preceding general election in April, 1940, or appointments duly made to take the place of those who had been elected at that election and subsequently resigned. It is also conceded that as to Wards 1, 3 and 6, each of these wards has a sufficient population as shown by the census released in January, 1941, to entitle it to another police juror if the Governor had the right to make the appointment. As to the additional police juror for Ward 9 to which Gordon C. Ogden was appointed, it is contended by relators, in addition to the grounds of attack leveled against the other three appointees, that as this ward has a population of less than 10,000, as shown by said census, it is not entitled to an additional police juror under the above-mentioned act.

It is the contention of relators that, as the above-quoted act provides for the election of the additional police jurors by the voters of the respective wards at the general election in 1940, and each general state election thereafter, no vacancy or vacancies existed in these offices, as no election could be held to fill same until 1944; that as these additional offices will not come into existence until the next general election, there is no vacancy therein and consequently the Governor had no authority to fill the offices by appointment.

It is the contention of defendants that the release of the census in January, 1941, had the effect of bringing into existence these additional offices for these four wards, and consequently as no one had been elected or could be elected to the same until the general election in 1944, there existed a vacancy which the Governor was authorized to fill under the provisions of Act 236 of 1916.

Certain exceptions were filed by defendants in each suit, but it is only necessary to mention two of these. One exception is grounded on the failure of relators to set forth the name of the person rightfully entitled to the office from which they seek to oust defendants. The other exception is one of no cause or right of action which involves the same question of law presented on the merits, and it is unnecessary to discuss this exception separately from the merits. Before taking up the legal question presented by the exception of no cause of action as well as that presented by the merits, we will discuss the first exception above mentioned.

In the former suit against the District Attorney for a mandamus, the question was raised by him that the citizens and taxpayers who requested him to bring the ouster proceeding were required to give the name of the person rightfully entitled to the office, which could not be done in this case as no one claimed a right to these offices, but on the contrary, claimed that no such offices existed. This contention was made in that suit by reason of Section 2597 of the Revised Statutes, as amended by Act 102 of 1928, which section, as amended, provides that when the district attorney brings an action against a person for usurping or intruding into a public office, he must set forth in the complaint the name of the person rightfully entitled to the office with a statement of his right thereto. Judge Holcombe, in the former suit, overruled that contention and held that where there was no other person claiming the office other than the person against whom the proceedings are brought, it would be impossible to name any other claimant, and his interpretation of this section, as amended, was to make it mandatory on the District Attorney to name the person rightfully entitled to the office where there was another claimant to the office; that the purpose of this requirement is to declare the occupant of the office an intruder and not to establish title to the office in some one else. We agree with this interpretation of this section as amended.

The exception filed by defendants in the present suits merely reurges the same points involved in the previous suit. The Revised Statutes, Sections 2593 and 2594, previous to the amendment by the Act of 1928, gave the district attorney the right, and made it his duty, when required so to do, to bring a suit against a party usurping, intruding into or unlawfully holding and exercising the functions of a public office. Section 2597 of Revised Statutes, before the amending Act of 1928, provided that when bringing such a suit, the district attorney, in addition to the statement of the cause of action, might also set forth the name of the person rightfully entitled to the office, with the statement of his right thereto. Act 102 of 1928 amended Sections 2593 and 2594 so as to permit a person demanding possession of a public office to bring an ouster proceeding against a person claiming or exercising the functions of the office in the name of the state, and it was further provided in the act which amended Section 2597 so as to require the district attorney to name the person rightfully entitled to the office, obviously for the purpose of showing that the person who occupied the office had no right to hold it. As Sections 2593 and 2594 gave the party claiming the office the right to bring an ouster suit against the usurper, it was evidently thought necessary to require the district attorney to name the rightful claimant in order that he, in the same suit might be put in possession of the office if he was entitled to it and the usurper or intruder was ousted therefrom. Obviously, if there was no one claiming the office, or if no one could occupy such office, there would be no occasion for...