Goldman v. Gillespie

The opinion of the conrt was delivered by Bermudez, C. J. This is exclusively an injunction proceeding. The fundamental averments upon which the plaintiff relies are simply: 1. That he is a duly commissioned, qualified and inducted member of the Board of Levee Commissioners for the Fifth Louisiana Levee District, and, as such, is in possession of the office, discharging the functions thereof and receiving the perquisites thereto attached; in other words, is a de facto officer. 2. That the defendant, who has been illegally commissioned by the Executive to succeed the petitioner as having been removed, unless restrained by injunction, will soon attempt to assume the functions of said office and claim the perquisites of the same in the place •and to the exclusion of petitioner. [85] As a corollary, it is charged that, being the incumbent, petitioner-is entitled to a writ of injunction to restrain the defendant from interfering with him in his possession of said office and in the discharge of his duties, until after proper proceedings the disputed right to the office shall have been judicially determined. The prayer is in accord with the averments. The injunction sought was allowed. The petition was followed by a supplemental petition. Issue was joined by exceptions and by a general denial, amplified by averments of previous vacancy occasioned by a removal, which denied to the plaintiff the right to aver -himself an encumbent. The exceptions were overruled, and the injunction issued in limine was allowed to continue until the determination of the pretensions, of the defendant in a proper proceeding. From the judgments thus rendered the present appeal was taken. The exceptions were properly overruled. The petition disclosed a cause of action, and the other matters thereby set up appertained to another future suit, and not to that before the court. The litigants asserted conflicting titles to the office, raising questions involving the power of the G overnor to remove and to appoint a successor. Whatever the appearances and contentions of the parties were below and here on that subject, it is clear that under the conservative ruling in the case of Guillotte vs. Poincy, 41 An. 333, which is. fully applicable to this ease, as far as the law is concerned, touching the quid judicandum, the respective title of the contestants to the office of commissioner of the Fifth Levee District can not now be. determined. The facts in that ease are not parallel to those in the present one. There, Guillotte was an incumbent, and feared that the board of which he was a member would aid Poincy in entering upon the discharge of his duties. Here, Goldman is also an incumbent, but he does not allege any-fear that the board will recognize Gillespie. On the contrary, he proves that the board does not admit the validity of the appointment of the defendant. Practically, the injunction in the Poincy case against the board was a superfluity, as it issued' against Poincy, who could not, while* so enjoined, claim any recognition. [86] Here, it could not at all issue against the board owing to the stand taken by the commissioners. For the same reason that it was useless in the Poincy case it would have been unnecessary here. It is this, that although the board may be unwilling to recognize Gillespie, he may induct himself into office by discharging, otherwise than concurrently with the other members of the board, some of the duties which are, under the law creating the board, susceptible of being performed by a commissioner alone in the district of his residence. By Section 17 of the act creating the board (Act 44 of 1886, p. 68) the care and police of levees devolves of right on the resident commissioner, who is specially authorized in cases of danger or urgent necessity to order out all, or as many as may be necessary, of the road hands of the parish, and cause them to work on the levees, provision being made for their payment. It is clear therefore that, unless restrained, the defendant may thus assume the functions of levee commissioner; and were the board to change its attitude and to consider him as entitled to recognition, it might admit him to act as one of the board to the exclusion of the. plaintiff, who is an incumbent. It may be well to add that in applications for injunctions in cases of this description judges should require the strongest essential showing, for it is a grave thing in itself for an incumbent to resist the appointment of a successor to him by an Executive; otherwise, upon mere routine allegation, every commission, issued by the Governor, even in proper cases, could easily be for awhile nullified. Judgment affirmed. Breaux, J., dissents.