Willis v. Word , 1928 La. App. LEXIS 17 ( 1928 )

LECHE, J.

This action was instituted in the name of the State of Louisiana on the relation of Dr. J. D. Willis, and its purpose as averred in the petition, is to have Dr. J. D. Willis recognized as parish health officer for the Parish of Vernon, and to enjoin Dr. Brown Word from interfering with him' in the exercise of the functions of that office or in the enjoyment of its emoluments. Relator’s demand was rejected by tbe District Court, and he bas appealed.

Tbe action is not brought under tbe intrusion info office Act 156 of 1868 (R. S. 2593) nor is it one to remove a person from office under Section 6 of Article IX of tbe Constitution, both of which must be instituted by the District Attorney or the Attorney General, but relator assumes in bis petition that be is tbe actual incumbent of tbe office of Parish Health Officer for tbe Parish of Vernon. Proceeding under such assumption, be seeks to enjoin Dr. Brown Word from interfering with him in tbe exercise of tbe functions of that office, to enjoin tbe Police Jury of tbe Parish of Vernon and tbe Parish Treasurer of that parish from paying tbe salary of that office to Dr. Brown Word, .and be prays for personal judgment against Dr. Brown Word for two hundred dollars, alleged to have been collected by tbe latter for two months’ salary.

It matters not bow tbe action be classified or denominated, we nevertheless believe that it comes within our appellate jurisdiction under tbe moneyed demand contained in tbe prayer of tbe petition and we see no- ground to dismiss tbe appeal as prayed for in appellee’s motion.

Assuming that an- action of this kind is sanctioned by tbe law of this state, it is only logical and reasonable that plaintiff should, as a condition precedent to obtain tbe relief which be seeks, allege and prove bis muniments of title to tbe office which be claims to bold. Tbe District Court held, and we believe properly, that relator bad failed to do so, and accordingly rejected bis demand.

Relator does allege that be is tbe duly appointed health officer of tbe Parish of Vernon, for having been elected to that office by tbe Board of Health of said Parish on February 1, 1927, but be does not allege that be ever qualified for that office by taking the oath required by tbe Constitution. It is true that on tbe trial of tbe case on May 20, 1927, be offered in evidence an oath of office taken April 21, 1927, not shown to have been filed or recorded, but this oath was taken more than two months after bis alleged election. Under the provisions of Act 19, p. 43 of 1878, be bad already forfeited bis right to that office. He alleges that be was elected February 1, 1927, and be should have taken bis oath of office' within 30 days thereafter.

According to tbe provisions of Act 296, p. 530, of 1926, Parish Boards of Health are elected by Police Juries for their respective parishes, and such Parish Boards of Health appoint with tbe advice and consent of tbe State Board of Health, a Parish Health Officer, who must be a licensed physician. It appears further that tbe members of tbe Parish Board of Health by whom relator claims to have been appointed, bad like relator, also failed to take tbe official oath, -so that when they appointed relator, they bad no official standing and did not constitute an organized legal body. Relator argues that defendants bad no right to collaterally attack the official standing of tbe members of tbe Board of Health by whom be bad been appointed. Tbe doctrine that tbe acts of a de facto officer cannot be attacked collaterally bas no application here, for tbe act which is attacked in this case forms tbe very basis of relator’s demand. Tbe demand in this case may be assimilated to one which is based on a judgment which is null. A defendant in such a case may always attack tbe validity of tbe judgment'. Paxton vs. Cobb, 2 La. 139.

We believe tbe District Court properly rejected relator’s demand, and for that reason, tbe judgment appealed from is affirmed.