State Ex Rel. Cavanaugh v. Police Jury

OTT, Judge. The plaintiff, in his capacity as district attorney of the Eleventh Judicial District and in his capacity as a citizen of Vernon Parish, seeks, by mandamus, to compel the police jury of said parish, and the individual members thereof, to refer certain local option petitions presented to it on September 8, 1936, to the Registrar of Voters to ascertain the number of qualified voters thereon, and to compel the said registrar to check and certify the names on said petitions, and if said petitions contain the signatures of 25 per cent, of the qualified electors of said parish, that the said police jury be ordered and commanded, as its ministerial duty, to call an election as requested in said petitions to determine whether or not intoxicating liquors, including wine and beer, shall be manufactured, sold, used,' or distributed in said parish, in accordance with Act No. 17 of the First Extraordinary Session of the Legislature for the year 1935. The police jury answered and by way of defense set up that these petitions had been circulated previously and had been presented to the Registrar of Voters and checked by him and found to contain an insufficient number of signers, and, for that reason, the petitions had been rejected by the police jury at a previous meeting at which previous meeting the police jury had, by resolution, refused to call the election and had notified those presenting the petitions that the police jury would not again consider these petitions, but that it would be necessary to present new petitions. The registrar did not file a separate answer, but we notice that he signed the answer of the police jury with the president to verify it, and we assume that he meant to adopt the answer of the police jury as his answer also. The case went to trial and the district judge made the alternative writ of mandamus peremptory, commanding the police jury and the individual members thereof to refer to the registrar for checking and certification the said petitions, and ordering-said registrar to receive and check said petitions and certify the number of eligible voters thereon, and if said petitions are shown to contain 25 per cent, of the qualified electors of said parish, commanding the police jury to call said local option election as provided by law. The police jury asked for a suspensive appeal which was refused by the trial judge, whereupon the police jury applied to the Supreme Court for writs of certiorari, mandamus, and prohibition, which were granted, and the trial judge was ordered to grant a suspensive appeal to said police jury returnable to the appellate court shown to have jurisdiction of the appeal. 185 La. 884, 171 So. 64. A suspensive appeal was then granted to the police jury, returnable to this court on December 1st, 1936. This appeal was dismissed by this court on its own motion on February 12, 1937, because of the absence from the record of the signed judgment. 172 So. 403. Since the appeal was dismissed, appellant has filed an application for a rehearing [470] to which is annexed the original signed judgment, together with a certificate of the clerk to the effect that this original judgment was inadvertently left out of the record by him. As this original judgment was left out of the record through an oversight of the clerk and through no fault of the appellant, we think that the appeal should be reinstated and the case considered on the merits. Genco v. Union Berry & Truck Ass’n (La.App.) 167 So. 890. The order heretofore entered dismissing the appeal is hereby set aside, and it is now ordered that the appeal be and the same is hereby reinstated.