83 So. 657 | La. | 1920
R. Emmet Hingle, judge of the district court for the Twenty-Ninth judicial district, died on the 4th of December, 1919. That fact was certified to this .court by the
On the 11th of December, Leander H. Perez appeared in the Supreme Court and presented his commission as judge of the district court of the Twenty-Ninth judicial district, signed by the Governor of Louisiana, dated the 5th of December, .1919; and he filed therewith a petition addressed to the Supreme Court, asking that the order appointing or designating Judge Cage to act as judge in the Twenty-Ninth judicial district be revoked. This court ruled that the order should not be revoked. The main reason for the ruling was that the ex parte proceeding adopted by Judge Perez was not a proper remedy. The writer dissented from that ruling and handed down written reasons for so doing.
Judge Perez then instituted this proceeding in which by an order signed by the chief justice on the 17th of December, 1919, the Honorable Hugh C. Cage was ordered to show cause why a writ of prohibition or other remedial writ should not issue, and why the order dated the 6th of December, 1919, designating him to act* as judge of the Twenty-Ninth judicial district court, should not be. rescinded.
It is alleged in the relator’s petition, and is not denied in the answer of Judge Cage, that he is preventing Judge Perez from exercising his authority as judge, and has instructed the sheriff and the clerk of the district court of the Twenty-Ninth judicial district to prevent Judge Perez from discharging any judicial function in said district.
Relator alleges in his petition: First, that the order of the chief justice, appointing Judge Cage to act as judge of the Twenty-Ninth judicial district court, was an absolute nullity, because the chief justice did not have jurisdiction or authority, nor did any justice of this court, or the court itself, have jurisdiction or authority, to make an appointment or designation of a district judge to fill a vacancy in the office of district judge; and, second, that, even if the appointment or designation of Judge Cage to perform the duties of judge of the Twenty-Ninth judicial district court was valid, it was declared in the order appointing him that he should discharge those duties only until the vacancy caused by the death of Judge Hingle should be filled according to law; and that the appointment of Judge Cage, even if originally valid, had been terminated by the taking of the oath of office by the Governor’s appointee.
In his answer to the rule, Judge Cage, very properly, acknowledges that he has no interest whatever in this matter. He makes the allegation, which is altogether irrelevant, that the people — we presume he means some of the people — of the Twenty-Ninth judicial district take issue with the Governor in the latter’s belief that he had authority to ap-’ point a successor to the late Judge Hingle. That allegation is the reason or cause shown by Judge Cage for refusing to surrender to Judge Perez the office of judge of the Twenty-Ninth judicial district court And that, too, in our opinion, is a matter with which Judge Cage should not be concerned. In fact, Judge Cage so admits, and puts the issue squarely up to us, in his answer to the rule, thus:
“That it is apparent that this appearer has no jurisdiction to decide this issue” (referring to the people’s having taken issue with the. Governor) ;■ “and as these facts are well known to this honorable court, and as it has not seen*377 fit to order appearer' to cease exercising the duties of judge in the district aforesaid, it is equally apparent that it is the duty of ap-pearer to continue in his present course until this honorable court instructs him to cease;
“That appearer desires to make clear to this honorable court that he does not claim and has never claimed any right or franchise or title in or to the office of judge of the Twenty-Ninth judicial district court, nor to the honors, dignities or emoluments thereof;
“That, accordingly, he has no interest in this proceeding, other than to fulfill his duty as an officer of this state, and to render obedience to the orders of this honorable court.
“Accordingly, appearer prays that this honorable court will render such orders and decrees herein as to it shall seem consonant with the facts, the Constitution and the laws; and that, in so doing, it will be pleased to declare that this appearer is in no sense a party defendant and cannot be east in costs.”
The sum and substance of Judge Cage’s answer to the rule, therefore, is that it is not his doing, but the refusal of this court to revoke his appointment, that is keeping Judge Perez out of office.
The clerk of the Twenty-Ninth judicial district court has intervened in this proceeding, alleging that he, not Judge Cage, is the party against whom the proceedings should have been brought, because he, the clerk of court, by his certificate, procured the appointment of Judge Cage. By way of exception to the proceeding of Judge Perez, the inter-vener asserts that the Supreme Court has not the supervisory jurisdiction to revoke the ex parte order, directing Judge Cage to hold court in the Twenty-Ninth judicial district; and the intervener, by way of exception, contends that this proceeding of Judge Perez should be dismissed because he, the clerk of court, was not notified of the intention of Judge Perez to ask us to revoke the appointment of Judge Cage. The intervener also alleges that the issue is between the Governor of Louisiana and the people of the Twenty-Ninth judicial district. But the only people who appear to be questioning our authority to set aside the ex parte order appointing Judge Cage are the clerk of the Twenty-Ninth judicial distinct court, and the district attorney. He also intervened, alleging that, as district attorney, he was ex officio the representative of the people of the judicial district. He, too, excepts to the jurisdiction of this court to set aside the ex parte order appointing Judge Cage; and this intervener also takes exception to the fact that the relator herein did not serve notice upon the clerk of the district court that he, Judge Perez, intended to institute this proceeding.
The respondent, Judge Cage, did not file a brief in this court, but, very properly, submitted the matter as being entirely under our authority and control.
The interveners, however, have filed a brief; and in their brief they virtually concede that this court did not have — and that no justice hereof had — jurisdiction or authority, under article 112 of the Constitution, to fill, even temporarily, the vacancy caused by the death of Judge Hingle. The only reference to article 112 of the Constitution, in interveners’ brief, is in this paragraph, viz.:
“It is true that, at the time of Judge Cage’s appointment, there was some mention made of article 112 of the Constitution of 1913. But, on further reflection, we are convinced that there is no necessity for relying upon the Constitution of 1913 at all.”
To say that “there was some mention made of article 112 of the Constitution” at the time of Judge Cage’s appointment is a rather mild way of stating the fact — for it is a fact —that the certificate of the clerk of court, advising this court that it was necessary to make, an appointment, was expressly founded uopn article 112 of the Constitution; and the order making the appointment declared that it was made with reference to the certificate. If article 112 did not confer the authority, there was no authority for making
It is true the interveners contend that such authority is to be found in article 94 of the Constitution, vesting the Supreme Court with general supervision and control over all inferior courts. But the argument is immediately stultified by the contention of the interveners, in the same breath, as it were, that article 94 does not give this court authority to undo, in this proceeding, what w'as done in the ex parte proceeding appointing Judge Cage.
Judge Cage is not entitled to the provisions of the Act No. 39 of 1873, “An act to regulate proceedings in contestations between persons claiming judicial office.” Nor does he claim the benefit of that or any other statute, to maintain himself in office. If such a proceeding were brought against him, he would very properly answer, as he answers here—
“That he does not claim and has never claimed any right, franchise or title in or to the office of judge of the Twenty-Ninth judicial district court, nor to the honors, dignities or emoluments thereof.”
And he would say, as he says in answer to the rule issued herein, that his only reason for continuing to prevent Judge Perez from exercising the duties of his office is that this court “has not seen fit to order appearer to cease exercising the duties of judge in the district aforesaid.”
We see no reason, however, why we should, on the mere suggestion of the interveners, who have no interest in this proceeding, question the validity of the appointment and commission of Judge Perez. In fact, the validity of his appointment or commission is not in contest here. The important facts are: First, that this court, and each and every justice thereof, was without jurisdiction or authority to make an appointment to fill a vacancy; and, second, that, if the appointment had been valid it would have expired by limitation when Judge Perez qualified.
There is no occasion for considering the question whether a judge of the civil district court for the parish of Orleans is eligible to be appointed or designated, in cases of temporary disability, to preside as judge of a judicial district court, which exercises criminal as well as civil jurisdiction.
Por the foregoing reasons, the order dated