State ex rel. Harvey v. Stanly , 173 La. 807 ( 1931 )

On Motion to Dismiss.

ROGERS, J.

The relator, Thomas L. Harvey, instituted this suit under Act 102 of 1928, alleging, in substance, that the respondent, Finly Stanly, was discharged as parish superintendent of schools by the school board of Vernon parish on January 2,1931, thereby creating a vacancy in that office; that relator was elected to the office for the remainder of the term, expiring July 1,1933, and immediately qualified and performed the duties thereof during the remainder of the session. .Relator also alleges that the» respondent refused to vacate the office and deliver to him possession of its books, keys, files, and other property, notwithstanding he was lawfully elected parish superintendent of schools of Aernon parish and, as such, is lawfully entitled to the possession of the said office together with all the property and effects thereto belonging; that respondent’s acts constitute an unlawful intrusion therein, and an unlawful attempt to remain in possession thereof, to the prejudice and jeopardy of relator’s rights. Relator further alleges that the emoluments of said office for the term for which he was elected are worth in excess of $2,000; the petition showing, as matter of fact, that the salary of the office was fixed at the sum of $3,240 per year, payable monthly.

Respondent filed an exception of no cause of action to relator’s petition. The court below sustained this exception and dismissed the suit. Relator appealed, and respondent has moved to dismiss the appeal.

Respondent alleges, in his motion to dismiss, that under article 7, §§ 10 and 29, and article 9, § 7, of the Constitution, the Court of Appeal for the First Circuit, and not this court, is vested with jurisdiction to entertain relator’s appeal.

Respondent’s contention that this suit- is governed by article 9 of the Constitution is untenable. That article deals exclusively with the impeachment and removal from office of those officers who are guilty of high crimes and misdemeanors in office, ineompeteney, corruption, favoritism, extortion, or oppression in office, or of, “gross misconduct, or habitual drunkenness.” Section 1. The present suit is between, private parties to have judicially determined which one of the litigants is entitled to the office in dispute. Hence the question of which court is vested with appellate jurisdiction in the case must be tested by the provisions of article 7 of the Constitution. The constitutional provisions to be reviewed are sections 10, 29, and 35 of the article.

Section 35, article 7 of the Constitution, grants exclusive jurisdiction to the district courts in all cases where the “right to office, or other public position, or civil or political rights are involved.” Section 10 vests this court with jurisdiction in all cases in which the amount involved exceeds $2,000, exclusive of interest. Section 29 confers jurisdiction on the Courts of Appeal in civil cases where the district courts are given exclusive original jurisdiction and of which this court is not granted jurisdiction.

Respondent argues that relator has failed to allege that there is any amount in dispute between them, and that the present suit is, in effect, nothing more than a proceeding by mandamus to compel respondent to deliver to relator the room occupied as an office, the books, papers, files, keys, and other property appertaining to the position of parish superintendent of schools.

But respondent concedes, and he could not well do otherwise, that the proceeding involves the title to the office of parish superintendent of schools. The first article of respondent’s motion to dismiss the appeal is in the following words, viz.: “That this is a suit seeking to remove your Respondent, Appellee, from the office of Parish Superintendent of Schools of the Parish of Yernon and involves, as between the Appellant and your Respondent, Appellee, the title to said office.” It is true that in the second article of the motion respondent alleges that the emoluments of the office are not involved in the suit. But it is difficult to understand how the title to an office can be in contest-without involving in the contest the right to the emoluments, records, and other property of the office. Certainly, as the title to the office vests so vests the right to the emoluments, records, and other property of that office.

Neither the relator nor the respondent pretends that he has any personal ownership of the papers, records, and other property belonging or appertaining to the office of the parish superintendent of schools. The incidental claim of each to these effects is based solely on his primary claim to the office itself. If relator is not entitled to the effects, it can only be because he is not entitled to the office to which the effects belong; and, if he is not entitled to the office, he is certainly not entitled to the emoluments thereof. On the other hand, the respondent can only retain the effects if he is entitled to the office to which the effect's belong; and, if he is entitled to the office, he is certainly entitled to the pecuniary benefits attached thereto. So that the suit, as disclosed by the pleadings taken as a whole, is one to determine which of the parties litigant has the better right to the office of superintendent of schools for the parish of Vernon. It is alleged and not disputed that the emoluments of the office in question exceed $2,000. Hence this court has jurisdiction of the appeal in the case. State ex rel. Rogers v. Parsons, 120 La. 263, 45 So. 125.

For the reasons assigned, the motion to dismiss the appeal is denied.