23 La. Ann. 784 | La. | 1871
This is a proceeding under the intrusion act. Revised Statutes, p. 271, sec. 1150.
The petition of the relator represents that N. A. Rohinson was elected district attorney lor the Ninth Judicial District in April, 1868; that he qualified and was duly commissioned, and that he discharged the duties of said office until about the first of August, 1871, when the detendant intruded into said office, and he unlawfully performs the functions of said office under color of an appointment and commission from Henry C. Warmotli, Governor of the State of Louisiana. The evidence sustains the foregoing statement of facts
The only defenses made in this court are:
First — That Ihe plaintiff only took the oath of office prescribed by article 100 of the Constitution, and tailed to take the oath prescribed
Second — That the relator must recover on the strength of Ms own title.
First — In the case of State ex rel. R. C. Downes v. E. B. Towne, 21 An. (which like this was a contest for an office created by the Constitution), this court said: “ Failure to take the oath testing his eligibility and to file it in the office of the Secretary of State in the time limited in act No. 39 did not ipso facto destitute him of his office. It was not in the power of the Legislature to legislate him out of office, or to diminish or increase his term of office as fixed in the Constitution.” The precise question was decided against the pretensions of the deiendant in that case, and time and reflection have only strengthened our conviction then expressed. 21 An. 492.
Second — The State is a party plaintiff to the proceedings, and as to the State, it is not essential to show that N. A. Robinson was entitled to the office; the defendant could be ejected from office, if an intruder, whether the State showed that Robinson had a valid title to the office or not.
It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.
