Summary
In Feinblum v. La. State Board of Optometry Examiners, 92 So.2d 577 (La.App. 1957), there was an appointment by the governor from an inappropriate list but the court found the appointment was to a de jure office and was, therefore, a de facto officer.
Summary of this case from Opinion NumberOpinion
No. 42198.
January 21, 1957.
APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, DIVISION B STATE OF LOUISIANA, HONORABLE G. CALDWELL HERGET, J.
Wood H. Thompson; Thompson, Thompson Sparks, Monroe, William J. Wegmann; Racivitch, Johnson, Wegmann Mouledoux, New Orleans, for appellant.
Frank S. Normann; Normann Normann; Lee C. Grevemberg; Paul O. H. Pigman; Wisdom, Stone, Pigman Benjamin, New Orleans, Henry Klepak, Dallas, Tex., for plaintiff-appellee.
This is an appeal by the defendant, Louisiana State Board of Optometry Examiners, from a judgment enjoining the said Board, "its members, officers, agents, servants and employees from holding any hearing of any charges against petitioner [Dr. Milton Feinblum] for the purpose of considering the possible revocation or suspension of petitioner's certificate to practice optometry, or from taking any other action which might interfere in any manner with or prevent the petitioner herein from practicing optometry in the State of Louisiana," on the sole ground that the Board is illegally constituted in that the Governor, in appointing the members of said Board, did so from a list of names furnished by the "Louisiana State Association of Optometry, Incorporated," and not from a "list of * * * names presented to him by the Louisiana State Association of Optometrists," as required by LSA-R.S. 37:1042 — the trial court having found as a fact that there is not in existence the Louisiana State Association of Optometrists. Consequently, this Court is without jurisdiction of this appeal. There is no amount in dispute or fund to be distributed, no law of this State or ordinance of one of its political subdivisions was declared unconstitutional, and the case does not fall under any of the other categories in which the Constitution grants to this Court appellate jurisdiction in civil suits. Article 7, Section 10 La.Constitution of 1921, LSA.
By virtue of the authority vested in this Court by LSA-R.S. 13:4441 and 4442, it is ordered that this case be transferred to the Court of Appeal, First Circuit, the transfer to be made within 30 days after this decree has become final; otherwise the appeal is to be dismissed. The appellants are to pay the costs of the appeal to this Court and the cost of transferring the case to the Court of Appeal. All other costs are to await the final disposition of the case.