Wheeler v. Board of Fire Commissioners

• Decision Date: 01 April 1894
• Docket Number: 11,407
• Citation: 46 La.Ann. 731,15 So. 179
• Court: Louisiana Supreme Court
• Parties: ARTHUR S. WHEELER v. BOARD OF FIRE COMMISSIONERS ET AL

15 So. 179

46 La.Ann. 731

ARTHUR S. WHEELER v. BOARD OF FIRE COMMISSIONERS ET AL

No. 11,407

Supreme Court of Louisiana

April 1, 1894

APPEAL from the Civil District Court, Parish of Orleans. Ellis J.

F. C Zacharie, for Plaintiff and Appellee.

E. A O'Sullivan, City Attorney, Henry Renshaw, Assistant City Attorney, and Lawrence O'Donnell, for Defendant and Appellant.

OPINION

NICHOLLS, C.J.

What is known as the fire department of the city of New Orleans owes its origin to the ordinance of the city of New Orleans which bears the number 5614.

The general control and administration of the affairs of the department is entrusted to a board designated as the "Board of Fire Commissioners of the City of New Orleans."

The powers, rights, duties and obligations of the board are set forth in the ordinance creating it.

Section 5 of the ordinance declares that the commissioners shall appoint all the officers and employes of the department, and Sec. 6 that the said board shall appoint as many assistant engineers, firemen * * * and other employes as may be requisite, also one veterinary surgeon. The 28th section of the ordinance is that upon which both parties to this litigation rely. It is as follows: "All officers and men of the department shall hold office during good behavior up to the age limits of sixty-five years, and shall only be deprived of office and position after impeachment and conviction by the commissioners."

The plaintiff herein was duly elected "veterinary surgeon" of the fire department on November 13, 1891, and qualified and entered upon the discharge of his duties as such. It is not pretended that he has resigned or been either removed or impeached. On the 12th of January, 1893, the Board of Commissioners elected John J Morice to the position of veterinary surgeon. On the 14th of January, 1893, upon the petition of the plaintiff, an injunction issued enjoining and restraining the Board of Commissioners and Morice from any action interfering with or infringing on the plaintiff's rights of discharging the duties and receiving the emoluments of the said office until such time as the disputed right to said office should be judicially determined. Plaintiff in the petition upon which this injunction issued set forth his election and qualification as veterinary surgeon, his continued possession and incumbency of the office, the terms and tenure of the office and the powers and duties of the board. He also set forth the action of the board in attempting to replace him by the election of Morice, and declared this action illegal and unwarranted.

He averred that the Board of Fire Commissioners and Morice (the latter claiming title to the office by virtue of the election mentioned) and Thomas O'Connor, chief of the fire department, were seeking to impede, interfere and obstruct him in the discharge of the duties and functions of his office and receiving the emoluments thereof, and that he feared that Morice would seek and obtain recognition as veterinary surgeon unless all parties should be restrained by injunction. He prayed that an injunction issue, and after citation and hearing that it be ultimately perpetuated, restraining the Board, Morice and O'Connor from any action interfering with or infringing upon his right of discharging the duties and receiving the emoluments of the said office until such time as the disputed right to said office shall be judicially determined.

A motion to dissolve the injunction, as having been illegally issued (as the averments of the petition did not warrant it), and an exception dismissing the suit as disclosing no cause of action, were successively filed by the defendants and overruled by the court. They then answered, first pleading the general issue, and further answering averred that Morice was duly elected under the ordinance; that he had immediately thereafter entered upon the discharge of the duties of the office and was in the performance of the same at the date the injunction was taken out; that he was prevented by the injunction from continuing to perform said duties, and that from the date of his election he had been and was still the sole and actual incumbent and de jure and de facto holder of the office. The District Court rendered judgment in favor of the plaintiff as prayed for by him, and defendants have appealed.

Only two questions are really before us:

1....