State ex rel. Coltharp v. Holmes

The opinion of the court was delivered by Breaux, J. The State ex rel. H. B. Holmes brought suit in the Parish of Madison, before the Eighth Judicial District'Court, against A. S. Coltharp, under the intrusion into office act, contesting his right to hold the office of Commissioner, for that parish, on the Board of Commissioners, of the Fifth Louisiana Levee District. He avers in his petition that he was commissioned on the 10th day of July, 1890. That he duly qualified by taking the oath of office and fulfilling every requirement o f the law, and is now and has been since said appointment ready and willing to serve in said office, to which he has a de jure right. That the defendant usurps, intrudes into and unlawfully holds, and exercises the duties thereof. He also avers, that the perquisites and emoluments of said office, during the term of said appointment, expiring about the 1st May, 1892, are worth annually about $60. The defendant in said suit, the relator in the application for a writ of prohibition, filed a peremptory exception of no cause of action. It was sustained by the District Court and the suit was dismissed. The relator, Holmes, appealed to the Court of Appeals, Second Circuit. The defendant, Coltharp, moved to dismiss the appeal on the ground that the Appellate Court was without jurisdiction, ratione material, for the reason that the amount in dispute was less than $100. The motion was overruled in March last, and the judgment of the District Court reversed, and the case remanded for trial. In May the trial was stayed, by a rule to show cause, issued in matter of the application under consideration. For the purpose of the trial before the District Court, also on ap • [1187] peal, the plaintiff in exception admitted the verity of relator’s petition, not one of the allegations of which is traversed. A question of law was presented. The plaintiff, in exception, now contends that by referring to Section 3 of Act 44, of 1886, it will be found that no fixed salary, either per month or per annum, is attached to the office of commissioner on the board of said Levee District, the provision on the subject being as follows: “The commissioners shall receive a salary of $4 per day each during the period they are in actual attendance upon the board, and 10 cents a mile, going and coming, to be paid out of the funds of the Levee District; * * * and a like salary shall be paid for each day the president and other commissioners shall serve in supervising the location, construction and repairs of levees, as now provided by said board.” The presumption sought to be drawn, that if the commissioners be not called upon to supervise the location, construction and repairs of any levee, during any given year, the emoluments would be considerably less than §60 per annum, can not affect the jurisdiction and prevail against the admission made by the plaintiff in exception, for the purpose of the trial of his exception. The issue resolves itself into a question of time. If the emoluments and perquisites per annum should date, under the allegation of the petition from December, 1890, i. e., the date suit was brought, and not from July, 1890, i. e., the date Holmes was commissioned, the Oourt of Appeals was without jurisdiction; but if, from the latter date, it properly exercised its jurisdiction. Only when it is made evident that jurisdiction has been illegally assumed, this court will interpose its prohibitive authority. With reference to the question raised about the right to recover any fees or emoluments at all, and the consequent insufficiency of an allegation predicated on that right, to establish jurisdiction, we find an answer in two cases in which it has been decided that, during the contest, the contestant has no right to the fees and emoluments of the office, although no service has been rendered by the contestant, who was not permitted to discharge the functions of the office. 15 An. 239; 10 An. 297. [1188] We do not find cause to set aside the decree of the Court of Appeals, or to treat it asa nullity, by granting the writ prayed for. Relator’s application for a writ of prohibition is rejected, and his; petition is dismissed.