21 La. Ann. 138 | La. | 1869
Plaintiff, who is Judge of the Parish Court of the parish of Pointe Coupee, has enjoined the defendant, who is clerk of the District Court of said parish, from acting as clerk of the. Parish Court,' and from collecting the fees of that office, which, he contends, belongs to him under the provisions of the Constitution.
. fie avers that the claims and pretentions of the defendant to tho office of Parish Clerk, and the fees .and emoluments thereof are based upon an- act of the Legislature approved September 4, 1868, which provides that the clerks of the several District Courts of this State shall be ex officio clerks of the Parish Courts, and which prohibits Parish Judges from receiving any fees; all of which, he contends, is contrary to and in violation, of the Constitution of this Stiite, which provides (article 86) that Parish . Judges “ shall- receive a salary and fees, to ho provided by law. Until otherwise.'provided,- each. Parish Judge shall receive a salary of one thousand two. hundred doHbrs per-annum, and such fees as are established by Law for District Clerks.”
He avers that, under this provision- of the Constitution,- ho has the exclusive right to act as clerk of his own court and receive the fees thereof.
He further represents that' said act is unconstitutional, because it authorizes and requires the clerk of the District Court to hold aud exercise the office of clerk of the Parish Chart, two separate offices of trust and profit, which is in violation of Article 117 of the Constitution.
. The defendant denied generally the allegations of plaintiff; denied that the law making him ex officio clerk of. the Parish Court is unconstitutional as alleged; and averred that plaintiff has no cause of action, and that he is estopped from pleading the unconstitutionality of said act, having drawn the additional salary stipulated -therein.
: There was judgment in favor of plaintiff perpétuating the injunction; and the defendant has appealed.
The -facts are admitted. - The only question presented for our consideration is, whether that part of the act of fourth September, 1868,
Article 117 of the'Constitution declares that “No person shall hold or exercise, at,the same time, more than one office of trust or profit, except that of justice of the peace or notary public.”
The fourth section of the act approved September 4, 1868, provides “That the clerks of the several District Courts shall be cx officio clerks of the Parish Courts, and that the clerk Or his regularly appointed and qualified deputy, shall always be in attendance on the Parish Court at all- its terms and ■ sittings.” It also proscribes certain duties to the clerks and imposes' a fine for failure to perform those duties.
W.e think this section clearly creates the office of Parish Clerk, and the words “ex officio ” do toot make it the less an office of trust. It is a separate office, and - the designation of the District Clerk to fill it, is' contrary to article 117 of the Constitution, and is, therefore, null and void
Article 86 of the Constitution declares that “ For each Parish Court one Judge shall be elected by the qualified electors of the parish. He shall hold his office for the term of two years. He shall receive a salary and fees, to be provided by law. Until otherwise provided, each Parish Judge shall receive a salary of one thousand two hundred dollars, and such fees as áre established by law for clerks of the District Courts. lie shall be a citizen of the United States and of this State:’’
The ninth section of said act of September 4,1868, provides “ That the Parish Judges' shall have.a salary, payable quarterly, on their own warrant on the' State Treasurer, graduated as follows: in parishes having one meinbéf iñ tlie House of Eepresentatives, two thousand dollars ; in parishes having two of more members in the House of Eepre-sentatives, two thousand five hundred dollars, and they shall have no fees of office.”
From a careful consideration of the eighty-sixth article of the Constitution, we are of opinion that the Parish Judge is entitled to receive n salary and fees, to be provided by law; and until the Legislature establishes other fees, he is authorized to receivo the same fees in cases in his court as the clerks of the District Courts are authorized by law to charge in like cases in the District Courts.
We think that part of the ninth section of said act which declares that Parish Judges “ shall have no fees of officé,” is also unconstitutional and void.
The eighty-sixth article of the Constitution secures to plaintiff, who' is * admitted to be Parish Judge, both a- salary and fees; and while it permits the.Legislature to fix the amount of the salary and fees, it does not authorize them to deprive him of the one or the other. The Legislature, had no more .power to deprive him of fees than of -a salary. It could not deprive him of either; ■
It is therefore ordered, that the judgment appealed from be affirnied with costs.
