
    No. 283.
    J. J. Davis, Mayor, et al., vs. Police Jury of Bossier Parish.
    There was no compilation ol the vote for the removal of the parish seat of Bossier Parish at the election held November 23, 1888, atthe session of thepolice jury November 27,1888.
    APPEAL from the Second District Court, Parish of Bossier. Boone, J.
    
    
      A. J. Murff, Watkins & Watkins and Young & Thatcher for Plaintiffs and Appellees:
    An exception to the citation is waived by appearing for the purpose of moving to. quash the writ of mandamus without first disposing of the exception. C. P.,. Art. 338.
    A motion to quash a writ of mandamus because of defective allegations, puts in issue the sufficiency of the allegations of the petition. High on Ex. liem., 369; 9th Wis. 279; State, Boggs, vs. County Court (W. Va.), 11 S. E., 72; also found in Lawyers’ General Digest for 1890, 1111.
    An injunction restraining the canvassing board from canvassing the returns and proclaiming the result is void for want of jurisdiction over the subject matter. High on Injunctions, 823; Am. and Eng. Ene. of Law, Vol. 6, 392.
    A canvassing board having once counted the votes, completed the canvass and announced the result, is functus officio. McCreryon Elections, 3d Ed., pp. 151,. 151; Am. and Eng. Enc. of Law, Vol. 6, pp. 307, 313.
    Where the law imposes upon a police jury the duty to select an exact site for the parish seat within one mile of a certain place, at a town, to which the parish seat has been removed by law, a writ of mandamus will lie to compel the police jury to act, and provide temporary court rooms and select the site within the specified limit. High on Ex. Rem., 26, 33, 293; Lawyers’ General Digest for 1889,. 1260, 1266; 11 An. 112; 31 An. 1111; 37 An. 660; 38 An. 13; 11 An. 156; 37 An. 610.
    
      
      Land & Land, J. A. W. Lowry, District Attorney, Jocwmes Smith and Atocmder Blanchard for Defendants and Appellants *
    1. The writ of mandamus must show precisely what is claimed or demanded, and set forth specifically the facts upon which it is based, and no reference can be made to the petition or affidavit in aid of the writ. High on Ex. Leg. Rem., Secs. 586,537,538, and note3 to last section; Moses on Mandamus, 206-209.
    If Article 841 of our Code of Practice sanctions a different procedure, then it is-essential that a copy of the petition should accompany the writ and be served on defendants.
    2. The minutes of the police jury, annexed to and made part of relators’ petition, do not show that the police jury ever proclaimed the result of the election as provided in Section 6 of the Acts of 1888, or authorized its president to so declare. Until this was done no duty rested on the police jury, such as the relators demand them to perform.
    The evidence does show that the police jury has, since the dissolution of the injunction, compiled the vote, ascertained that Benton received a majority, and so proclaimed result. Also, that its president, duly authorized by resolution of the jury, has issued his proclamation declaring thatBenton is the parish seat of Bossier parish.
    3. The writ of mandamus can only be invoked to compel the performance of a duty purely ministerial in its nature, and so clear and specific as to leave no' element of discretion in its performance. High’s Ex. Leg. Rein., Sec. 24; State ex rel. Daboval vs. Police Jury, 89 An. 759, and numerous authorities therein cited.
    4. If the writ issues for something which defendant is not bound to do under the-law, it can not be supported, even as to those things which he is compelable to perform, and the whole writ will he quashed. I-Iigh’s Ex. Leg. Rem., Sec. 539;. Moses on Mandamus, 207.
    Act No. 33 of 1888 does not require the police jury to provide a temporary court house at the chosen parish seat. Neither does'Section 2746 of the Revised Statutes impose any such duty upon them, and no good reason can he shown why the police jury should not use and occupy, free of cost to the parish, the old! court house at Bellevue, temporarily, ufitil a new one can be provided for and! built at the proper site.
    6. Under no reasonable view of this ease could the police jury be compelled to air once provide and furnish a temporary courthouse at Houghton. They certainly would have the right to exercise some discretion as to the selection of a suitable building, the price to he paid for rent, and to determine whether it was to the interest of the parish to rent or build such temporary structure.
    Again, the writ can not issue to compel them to do an act beyond their power- and in violation of law. This would be the effect of the writ in this case, since no provision has ever been made for the payment of rent by the police jury, and if in obedience to this writ they should enter into such a contract, it would be absolutely invalid, as expressly held by this court in Destraban vs. Police-Jury of Jefferson Parish, 31 An. 179.
   The opinion of the court was delivered by

McEnery, J.

Under the provisions of Act 33 of 1888, there were several elections to locate the parish seat of Bossier parish.

At the last and third election the contest was between the towns ©i Houghton and Benton.

.The election was held on November 23, 1888, and on the 27th of November the police jury met at the parish seat, Bellevue, for the purpose of compiling the vote and proclaiming the result. On this day, in the suit of Mobley et als. vs. Police Jury.of Bossier parish et als., an injunction was served on the police jury when in session, prohib.iting them from doing any act whatever favoring the removal of the parish seat of Bossier parish from Bellevue to any other place, or declaring same removed as the result of any election.

The proceedings of the police jury on this day were as follows:

“Bellevue, La., November 27, 1888.

“Police jury met pursuant to adjournment. Present — E. S. Dortch, president; J. A. Sewall, W. M. Abney, Henry Barnacastle, J. T. Maury, F. M. Barnett and J. W. Jeter, members.

“The minutes of last meeting read and approved. When R. E. Wyche, sheriff, appeared and served a writ of injunction on the president of this body, the sheriff and the clerk of the District Court, restraining them from doing any act in relation to the removal of the parish site of Bossier. When the returns of’the election held on November 23, 1888, were taken up, and the following vote ascertained, viz:

Houghton. Benton.

Ward 1......................................................................................... 1,215

Ward 2........................................................................................... 5 1,962

Ward 3.......................................................................................... 22 371

Ward i.................................................................................... 7 126

Ward 5, precinct 1....................................................................... 95 25

Ward 6, precinct 2...................................................................... 1,718

‘1 The sheriff then made his return on writ of injunction, when the following resolution was submitted:

“Resolved, That the irregularities and frauds committed in the election to change the parish site of Bossier parish at the election held on November 23, 1888, are such as to render it impossible to ascertain the true result, and it is, therefore, declared that no result of said election can be arrived at, and said election is without any result,

“ Be it, therefore, resolved, That another election be ordered at a time to be fixed by this jury; which was rejected, as follows:

“Yeas — J. A. Sewall, J. W. Jeter, W. M. Abney, 3.

“ Wavs — E.S. Dortch, J. F. Maury, H. Barnacastle, F. M. Barnett, 4.

“ It was then resolved that the police jury compile the returns as sent in by the commissioners.

“Yeas — Dortch, Maury, Barnett and Barnacastle, 4.

“Nays — Abner, Jeter and Sewall, 3.

“Adopted.

“ When, on motion, it was resolved that all the returns and poll books be placed in the charge of the clerk of this body.”

The rest of the day’s proceedings was taken up in the disposal of ordinary business. No further action on this day was had in relation to the compiling of the vote.

Regarding this action as final and conclusive as to the vote and the location of the parish site, which it is alleged was completed by a publication of this compilation in the parish official journal and the proclamation of the president of the police jury, also published in said journal, the relator prays for a mandamus to compel the police jury at once to provide temporary court and official rooms at the town of Houghton.

It is evident that no compilation of the vote as contemplated and required by Act 33 of 1888 was made at this day’s proceeding of the police jury. The statement of the vote was informal. No result was declared or proclaimed by any order or vote of the police jury. This is made more apparent by the resolution which followed, but Which was not adopted, ordering another election, and the other resolution which was adopted, but never carried into effect, to compile the vote. Had there been a compilation and an ascertainment of the result of the election, this resolution would have been unnecessary. That the whole matter went by default is plain from the resolution which immediately followed the above, placing the returns and poll books in the custody of the clerk.

As the vote had not been compiled, the result proclaimed by vote or order of the police jury, the publication of the statement of votes and the proclamation of the president of the police jury were without effect. This view'of the case renders it necessary to notice the several other defences of the defendant.

It is therefore ordered, adjudged and decreed that the judgment . appealed from be annulled, avoided and reversed, and it is now ordered that the relief prayed for by relator be denied and the rule •discharged at his costs.  