State ex rel. Thomas v. Fuller
| Decision Date | 03 February 1928 |
| Docket Number | 3070 |
| Citation | 8 La.App. 803 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | STATE EX REL. THOMAS, ET AL. v. FULLER, DISTRICT ATTORNEY |
Rehearing Refused March 14, 1928.
Judgment of Court of Appeal Affirmed by Supreme Court on Writs of Certiorari and Review May 6, 1928.
Appeal from the Eighth Judicial District Court, Parish of LaSalle. Hon. R. C. Culpepper, Special Judge.
Action by State of Louisiana, on the relation of Simcon B. Thomas A. Jack Taylor, and Clarence C. Paul against Harry Fuller, as District Attorney for the Eighth Judicial District of Louisiana.
There was judgment for relators and respondent appealed.
Judgment affirmed.
Hawthorn & Stafford, of Alexandria, and C. W. Flowers and S. R Holstein, of Jena, attorneys for relators, appellees.
Harry Fuller, District Attorney for the Eighth Judicial District of Louisiana, respondent, appellant, per se.
The parish of LaSalle, according to the last official census, contains less than fifty thousand inhabitants. Therefore, if any ward of that parish contains more than five thousand inhabitants, such ward, under the above act, is entitled to an additional police juror.
In order to ascertain whether ward three of that parish contained more than five thousand inhabitants and was, for that reason, entitled to an additional police juror, the Police Jury, on November 9, 1926, passed an ordinance ordering and directing that a census of that ward be taken.
The census was taken. The results showed that there were more than five thousand inhabitants in the ward. A certificate to that effect was forwarded to the Governor and he forthwith proceeded to appoint an additional police juror as well as an additional member of the School Board for that ward. Commissions were issued to them and they qualified and are now holding said offices.
After these officers had been appointed and qualified, some thirty-five persons of ward three and a great number from other wards of the parish, all alleging that they were citizens of the parish, petitioned the Honorable Harry Fuller, District Attorney, to bring suit in the name of the State, under Section 2593 of the Revised Statutes, to have these officers ousted, on the ground that they had intruded into and were unlawfully holding and exercising a public office, to-wit: that of police juror and member of the School Board.
They set up in their petition, as their grounds of complaint, substantially that according to the last official census ward three of LaSalle parish contained less than five thousand inhabitants and was therefore not entitled to an additional police juror and member of the School Board, that the Police Jury, in ordering and taking a census of the ward, had proceeded without warrant and without authority in law, that it had no right or lawful authority to certify the results of such illegal census to the Governor, and that he had no right under the law to create the office of an additional police juror and member of the School Board for that ward and had no right to make the appointment; and, further, that if the Police Jury had such right under the law, the census taken was erroneous and that, as a matter of fact, the ward contained less than five thousand inhabitants, as would be shown by a correct census.
For all of which reasons they alleged that the appointments made by the Governor and the commissions held by said officers are null and void and that said parties are unlawfully holding and exercising said offices.
The District Attorney refused to bring the suit.
Whereupon these petitioners brought this suit against the District Attorney, asking that mandamus issue ordering and directing him to bring the suit, setting out as a cause of action the grounds set forth above.
He filed in limine an exception of no right and no cause of action.
Reserving his rights under said exception, he answered setting up substantially that the Police Jury was warranted under the law in taking the census of ward three of LaSalle parish and certifying the same to the Governor, that the Governor had a right to make the appointments, and that said parties were lawfully holding and exercising said offices.
His exception of no cause and no right of action is grounded, as we understand, upon the proposition that he is vested under the law with discretionary powers as to what suits he shall bring in the name of the State and when to bring them and that mandamus will not lie to force him to act in cases of this kind; and, further, that in as much as the petitioners are not themselves claiming these offices, they have no right to proceed against those now holding them under appointment and commission by the Governor, and no right to force him to proceed against them in the name of the State.
The lower court overruled the exception of no cause of action, and upon trial ordered the District Attorney to proceed as required.
The District Attorney has appealed.
OPINIONThe questions whether the Police Jury of LaSalle parish was authorized under the law in ordering and taking the census of ward three of that parish in order to determine whether that ward was entitled to an additional police juror and member of the School Board, and whether the Governor was warranted in making the appointments, are not before the court in this suit. The only question presented is whether the District...
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