32 La. Ann. 649 | La. | 1880
John A. Cheevers was a candidate at the last general election for the office of Judge of the 22d Judicial District Court in this State, and obtained a majority of the votes cast for that position. This result having been announced in the manner required by law, he was commissioned as such judge by the Governor on the 5th of January, 1880, and took the oath of office on the 26th of the same month. On the 2d of April, following, a petition was filed in the name of the State by the Attorney General and the local district attorney, before the Fourth Judicial District Court, charging, for stated reasons, the ineligibility of Cheevers to the office of judge of the 22cl Judicial District ■Court, and asking for an injunction to prevent him from entering upon said office.
The judge then presiding in the Fourth Judicial District Court granted the order, and the defendant Cheevers was accordingly forbidden from acting as judge of the 22d Judicial District.
Oh the 5th of April, the day on which the 22d Judicial District Court was to have been organized under Act 264 of the Constitution of 1879, Cheevers did not, with the usual solemnity attending such acts, open court and enter upon his functions ; but H. L. Duffel, by whom the order of injunction had been issued as judge of the Fourth Judicial District Court, claiming to be still the judge of that Court and to be the acting judge of the Twenty-Second Judicial District Court, and considering himself authorized in the premises, assumed to open and organize the said court.
On April 15, following, under the same belief, and claiming to act in the same capacity, he assumed again to open the said court.
Then and there Cheevers, the defendant in said case, objected to the course pursued by said acting judge, and offered a protest, which was not allowed to be filed. To such refusal a bill of exception was reserved.
On the 16th of April, John A. Cheevers, in the name of the State, applied to this Court for a prohibition to prevent the State officers already mentioned, and said acting judge, from further proceeding in the case brought against him as before stated, and prayed for general relief.
The Court allowed a restraining order, and issued a rule to show cause why the prohibition asked should not be made perpetual.
The grounds relied on by Cheevers are :
1st. That the Fourth Judicial District Court was without jurisdiction to take cognizance and try the suit in question ;
2d. That H. L. Duffel, late judge of the 4th Judicial District Court, was absolutely incompetent and without any power to preside over the 2,2d J udicial District Court;
The defendants have made separate returns antagonistical to the-pretensions of John A. Cheevers in this Court for the relief sought, and explanatory of their conduct.
The grounds upon which the relator relies, and upon which the-respondents resist him, are so intimately connected and blended that ifc is hardly possible to pass upon the one without determining the others ; we shall therefore deal with all of them simultaneously.
We are clear that the Convention of 1879 intended that at the adoption of the Constitution which it framed the judiciary system created and established under the Constitution of 1868 should cease, and should be superseded, in the manner and at the time provided for by them in the new organic law. Art. 257.
The Fourth Judicial District Court, whose territorial jurisdiction embraced the parishes of St. Charles, St. John the Baptist, St. James, and Ascension, was to exist no more after the first Monday in April, 1880, and two courts were created by the Constitution of 1879, whose-jurisdiction was to extend over that territory, namely : the 22d Judicial District Court, over the parishes of St. James and Ascension ; the 26th Judicial District Court, over the parishes of St. Charles and St. John the Baptist, and besides over the parish of Jefferson, which previously was subjected to another jurisdiction.
Commissioned and sworn as he was, as judge of the 22d Judicial District Court, John A. Cheevers would on the fifth day of April, 1880, have actually entered upon the discharge of his official duties, but for the injunction forbidding him from doing so. Relying upon article 171 of the Constitution of 1879, which provides that certain classes of persons shall be for certain causes ineligible to any office of trust, honor, or profit under the State government, and preferring certain grave charges against Cheevers, the State, represented by its officers, brought the suit already mentioned, and enjoined him from acting as judge of the 22cl Judicial District Court.
Had the Fourth Judicial District Court the right of entertaining such a suit? It may have had, so far as the proceeding contemplated a judgment to declare Cheevers ineligible ; but this is not a question that we can how determine, but one which may come hereafter on appeal. The Fourth Judicial District Court could not, however, issue, as it did, an injunction against Cheevers, who had been commissioned and sworn as judge of the 22d Judicial District Court. The allegation, verified b3f affidavit, that unless the injunction issued the State would sustain irreparable injury, cannot, it would seem to us, be justifiable by any assumed
The petition for an injunction was presented in the name of the State, but the question arises: How can the State, after its highest executive officer had commissioned Cheevers to act as judge of said court, assume the attitude of an ordinary litigant apprehending wrong,. go before one of its subordinate judicial functionaries, and, on the averment of dreaded irreparable injury, ask an immediate suspension of the action of the Executive Department, unrecalled, as it was, by any competent authority, and where the office to be filled is originally vacant., and is not judicially claimed by any litigant setting up better rights ? The State could not do so, in its own exclusive name, in such a case without bringing into sudden and deplorable conflict those two co-ordinate branches of government, which are and should be kept distinct, and independent, and thus disturbing the functions of the government in the administration of justice by the judiciary department. The consequence of such improvident action is verified by the circumstances attending the granting of the injunction complained of, which has practically maintained in apparent authority, acting under color of office, as judge of the 22d Judicial District Court, the late judge of the late Fourth Judicial District Court.
We are, under the exigencies of the exceptional and unparallelled circumstances of this case, constrained to treat H. L. Duffel, not as the judge dejure, which it is claimed he is, but as the judge defacto, acting under color of office, of the 22d Judicial District Court, as, otherwise, if he was no judge at all, we would have no authority to entertain, as we do, the present proceeding against him, and there might possibly exist a wrong without apparent remedy, an eventuality which should by all legitimate means, if possible, be avoided.
There is no force in the objection that the judge of the Fourth Judicial District holds over until his successor shall have qualified. His court being defunct, he officially dies with it. The 22d Judicial District
When that court became defunct, all the causes pending before it were transferred by operation of law to the court provided for to fill the vacancy created by its extinction.
The case No. 2013 of its docket therefore passed to the 22d Judicial District Court, created by the Constitution of 1879 ; but, as it is brought against the person who obtained the majority of votes as judge of that ■c'ourt, and who claims to have been elected such, he is incompetent to determine it or deal with it in any manner, except for the purpose of disposing of it as is provided by act No. 40 of 1880, regulating the trial •of recused cases in the District Courts, the parish of Orleans excepted.
It is not perhaps out of place to remark here that the acting judge should have entertained the protest offered by Cheevers and ruled upon it, in the exercise of his judicial discretion, as he might have thought best under the law, previous to allowing any default to be taken, as was permitted by him to be done, which default will have, necessarily, to be set aside as a nullity, should the defendant have any preliminary defenses to urge which the law requires to be filed before issue joined.
The petition of the relator concludes with a prayer for general relief, which, in a case involving great public interest, may be considered susceptible of all legitimate amplification. Under its cover, we think •ourselves justified in the exercise of our plenary powers within the limits of constitutional boundaries to adjust the matters herein agitated, and to regulate the same, for the preservation of public order and the maintenance of the well-being of society; otherwise, a judicial district of importance might indefinitely be deprived of its judicial officer, to the great and surely irreparable injury and damage of the citizens entitled to protection within its realm.
It is therefore ordered, adjudged, and decreed that the prohibition 'herein provisionally issued be made perpetual, that H. L. Duffel be ac-•«ordingly forbidden from acting as judge, either of the late Fourth Judi-<eial District Court or of the Twenty-second Judicial District Court ¿aforesaid ; that the trial of the ease of the State vs. Cheevers, No. 2013 -of the docket of the late Fourth Judicial District Court, and transferred -.%»the Twenty-second Judicial Court, be proceeded with according to ’law, after the appointment of a judge to try the same under the provis-ñoas of Aet No. 40 of 1880, relative to recused cases in district courts -■outside of the parish of Orleans, and that John A. Cheevers be permitted and authorized to enter upon the discharge of the duties of judge ■of the Twenty-second Judicial District Court, without prejudice to the ■rights of whom it may concern to contest his eligibility to that office, Jibe respondents to pay costs of these proceedings.