State ex rel. Egan v. Steele

33 La. Ann. 910 | La. | 1881

The opinion of the Court was delivered by

Bermudez, C. J.

This is a proceeding before the District Oourt for •Concordia parish, to have the office of District Attorney of the Ninth Judicial District, composed of the parishes of Goncordia and Tensas, declared vacant.

The ground relied on is, that the defendant who, at the time of his election, resided in Tensas parish, has changed his residence from the • State to Natchez, Miss., and that the office has thereby been vacated.

The defendant excepted to the jurisdiction of the Oourt, on the ground that his domicil being in Tensas parish, the suit should have been brought before the District Oourt in that parish, which alone has jurisdiction over him, and to which alone he is amenable.

Evidence was adduced, under^he exception, which was sustained, and the suit was dismissed. From the judgment thus rendered the -State appeals.

The evidence shows that the defendant owned a house in Tensas . parish; that he sold it and invested the proceeds of it in the purchase of another house in Natchez, where he moved his wife and children.

We do not feel authorized to consider and determine whether the defendant has or not changed residence, in the sense of article 195 of the Oonstitution, for that would be virtually deciding the case on its merits, when the question of domicil, on the exception to the jurisdiction, is all that is now before us. R. O. O. 45.

The defendant may well have changed his residence as an officer, so as to have brought himself within the purview and penalties of the article; bub if he have, it would not follow that the change, as established by the evidence, has deprived him of his civil domicil, as an individual or citizen, in Tensas parish.

A residence is one thing and a domicil is another. A person may have as many residences as he may choose, but can have but one real domicil. 11 L. 175; 12 L. 190; 7 An. 395; 30 An. 498; Marcadé, vol. 1, pp. 236, 238, III. § 3; Laurent, Cours Elem. v. 1, p. 195, No. 96; Mourlon, No. 341; 22d Pick. R. 170-177.

Far from finding in the record evidence showing that the defendant has changed his domicil, as a citizen, to any other place, within or ■without the State, we discover facts which establish that he is a registered voter and votes in Tensas parish; that he is a road inspector or -overseer there; that he has paid his poll-tax there; that he has a law office there; that he has declared his intention to continue- having his domicil there; which declaration is spread on the proper public record; that he has a residence at St. Joseph’s, at his partner’s house there, at which he has engaged rooms permanently, which he occupies when he is in that parish; that professionally, he practices in the two parishes and in New Orleans, and officially discharges bis duties in those three places.

We do not wish, however, to be understood as saying'that, in order to have a domicil at a particular place, it is unnecessary there to have a residence, actual or constructive, with a representative living therein, at which and on whom, in case of absence therefrom, legal process can be served. Mourlon 1, 318, 321; Story Conf. of Laws, § 39 et seq.; 12 L. 190.

However that may be, it is established that the defendant had such a residence propria marte, in the parish of Tensas, at which service could have been legally made in his absence from that parish. Pothier, Cout. d’Orl. ch. 1, Art. 20; 5 Ves. 750; 5 Pick. 370; Cochin 3, p. 702; 3 R. 243; 9 R. 243; 11 L. 178; 12 L. 190; 4 An. 186; 19 An. 323.

Whether that sort of a residence is the actual residence contemplated and required by article 195 of the Constitution, from the officers named, as a condition sine qua non of election to and tenure of office, is a question on which we studiously refrain expressing any opinion, and which can only be passed upon, on the merits of a case properly instituted and presented. All suits, the object of which may be to subject the defendant personally to a deprivation of right, should be brought against him at the place of his domicil, while all proceedings which may be levelled against him officially, contemplating coercion of performance of official duty, may be instituted and prosecuted against him in the court before which, or in whose jurisdiction, the duty should be discharged. Thus he would be amenable, in a proper case, to proceedings for a mandamus before the District Court of the parish of Concordia.

The averment that he has, within the last twelve months preceding the institution of this suit, changed his domicil from Tensas parish to Natchez, could not, on its face, give jurisdiction to the District Court of Concordia parish, unless in the teeth of article 167 of the C. P., which distinctly provides: that in the case of a change of residence the defendant must be cited in the parish where he has resided within the last year, unless he has declared, in the manner prescribed by law, that he intended to have his domicil in the other parish; in which case he must be there cited.

A change of domicil from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there. That intention is established either by an express written declaration made.by the party before and registered by the parish Recorder, or, in default of such declaration, by proof of the intention, depending upon circumstances, showing acts which manifest sufficiently the intention of sucl\ party to make the parish moved to the place of his domicil. Where the declaration is not made, the party changing his domicil may be cited in the parish where he lives, though he has not resided one whole year there. In such a ease, it is optional with the party desiring to sue to bring suit in either parish. R. C. C. 41, 42, 43; C. P. 167, 168; 15 An. 533; 20 An. 246; 30 An. 498; 8 M. 709; 9 M. 491; 4 N. S. 51; 8 L. 213; 12 L. 190; 1 An. 78; 13 L. 297; 2 An. 946; 4 An. 553.

In those provisions of the Codes, the word “ cited ” means “ sued,” as no valid citation could issue and be served so as to bind the party sued, unless on a suit instituted before a court of competent jurisdiction, the suit being the foundation for the citation.

There is no intimation that such declaration was made or such circumstances exist, in the present instance, in Concordia parish. 6 N. S. 467; 19 L. 561; 12 An. 200; 15 An. 533; 23 An. 516, 564.

The presumption that the domicil of defendant, which, it is not disputed, was originally established in Tensas parish, has there continued, is sustained by the proof in the record. The old domicil continues until the new one is acquired. 3 R. 243; 11 L. 178; 2 L. 946; 2 An. 946; 4 An. 553; 7 An. 395; 9 An. 165; Marcadé, v. 1, p. 241; IV. 317.

The averment in the petition, the facts and the law, negative the legality of the bringing of a suit against a person in a parish in which he never had a domicil or residence, unless it be in the instances exceptionally enumerated by law, among which the present case is not to be found.

The theory upon which this proceeding is brought, seems to be, that the article of the Code of Practice, which requires one to be sued at the place of his domicil, C. P. 162, has no application to a proceeding against a District Attorney, to remove him from office, on the ground that he is a non-resident of the State.

This is a fallacy, which consists in assuming that a person can have but one residence, and. that it must be at the place of his domicil; that a change of that residence operates as a change of domicil; that the defendant, having changed his residence, has forfeited his right to a domicil in Tensas parish, and has become a stranger, or one having no domicil in the State, and who can be sued and cited wherever found. C. P. 162,165 (5). Such is not the .case.

Were the proposition a correct one, it could not be asserted, under the circumstances of this case, unless before the court having jurisdiction of the defendant’s last domicil. C. P. 167.

The defendant is not sued here in his official character, but in his individual or personal capacity. The petition says that his office has been vacated; thathe'is no more District Attorney; that he is a usurper, •an intruder. It does not ask that he be cited as District Attorney. He is sought, with or without reason, to be declared stripped personally of a valuable right of office. He is, therefore, entitled to have the suit brought, tried and determined by the District Court at the place of his domicil, which alone has jurisdiction of his person, and can render personal judgment against him; that is, the District Court of Tensas parish.

The judgment appealed from is correct, and it is, therefore, affirmed with costs.