42 So. 662 | La. | 1906
Lead Opinion
Defendant moves to dismiss the appeal on several grounds, which we shall take up and dispose of seriatim.
First. That all the parties to the judgment have not been made parties to the appeal. The parties left out of the appeal are the citizens at whose request the district attorney brought the suit, and whom, although not named in the petition as parties to the suit, the lower court condemned to pay the costs. The judgment, in so far as thus rendered against persons not parties to the suit, i-s, of course, not worth the paper it is written on, and cannot affect the right of the state to appeal in' precisely the same manner as if the judgment had been rendered against her alone.
It may be well, in justice to the judge a quo, to explain that there was not wanting plausible ground on which to render such a judgment. Act No. 135, p. 184, of 1880, is the enabling act of article 196 of the Constitution of 1879. It provides for the bringing of suit by the district attorney at the request of citizens for the removal of officers from office, precisely as the intrusion into office act provides for the bringing of suit by the district attorney to prevent officers from intruding into office. Differently, however, from the. intrusion into office act, it requires that the citizens at' whose request the suit is brought shall be made parties, and, in case of adverse judgment, shall be condemned to pay thq costs-. ■ The two' acts are distinct and different, and provide for different cases, but on casual reading might be taken to cover the same ground. That the complaining: citizens need not be-made parties to an intrusion into, office suit * whs expressly decided in the former suit against the same defendant. Miller y. Reid, Sheriff,' 45 |/a.; Ann. 162, 12 South. 189.
.Second. The second ground is. that' no bond;of .appeal Ms been furnished. The state is dispensed from furnishing bond (State ex rel. v. Sheriff, 45 La. Ann. 1231, 14 South. 130); and, as just said, the state is the only appellant in the case.
This ground is predicated on the assumption that the complaining citizens are parties to the judgment, in which case, as a matter of course, bond would have had to be furnished; but that assumption, as herein-above stated, is erroneous.
■The third, and last, ground is that the transcript is incomplete, in that it contains
The certificate of the clerk, as typewritten, is in the usual form; that is to say, to the effect that the “foregoing pages contain a true and correct transcript of all the documents filed, testimony and evidence adduced, and all proceedings had upon the trial ■of the above numbered and entitled suit.” But the word “and,” before the word “entitled,” has a pen mark run through it, and in its place is a caret, and above the caret is written with pen the words “exception in”; so that, as thus amended, the certificate reads: “All proceedings had upon the trial, of the above-numbered exception in entitled suit.” This peculiarity of the certificate, however, was not made one of the grounds of the motion to dismiss. In fact, on the 7th of June, when the motion to dismiss was filed, this certificate had not yet been filed. At that time the transcript contained no certificate- of any kind. But the appeal had been granted on the 1st of June and was returnable in 10 days, so that the appellant was yet in time to obtain a more regular certificate. But the certificate as it stands is sufficient, since the case was disposed of in the lower court on the exception.
The motion to dismiss must therefore be -overruled.
Opinion on the Merits
On the Merits.
The petition alleges that the defendant is .an intruder into and usurper of the office of -sheriff of the parish of Calcasieu, and that he unlawfully holds said office, because he was not legally elected to said office, he having been at the time of his election ineligible to said office by reason of the fact that during a previous term in the same office he had collected licenses and taxes for the state and parish and had failed to obtain a discharge for the amount of such collections, and was a defaulter to the amount of $12,-164.28.
The petition goes on to allege as follows:
“That the said David J. Reid is a permanent defaulter, as shown by Ms own confession, made in open court more than a year after the expiration of his said term of office, in the following numbered and entitled suits on the civil docket of your honorable court, to wit: No. 2,974, Mrs. M. Perkins et al. v. David J. Reid; No. 3,064, Wm. E. Ramsey v. David J. Reid; and No. 3,065, Chas. Miller v. David J. Reid. Certified copies of said judgments are hereto attached for reference.”
The judgments thus annexed to the petition show that the sureties on the former bond of the defendant as sheriff paid to the state, for taxes and licenses collected by him as tax collector and due by him to the state, the sum alleged in the petition; that said payment was made to the district attorney, who issued to the sureties a receipt for same; and that later the sureties sued defendant as subrogees of the state, and, on his confession, obtained judgment.
Article 182 of the Constitution reads as follows:
“No person who, at any time, may have been a collector of taxes, whether state, parish, or municipal, or who may have been otherwise intrusted with public money, shall be eligible to the General Assembly, or to any office of honor, profit, or trust, under the state government, or any parish, or municipality thereof, until he shall have obtained a discharge for the amount of such collections, and for all public moneys with which he may have been entrusted; and the General Assembly is empowered to enact laws providing for the suspension of public officials charged with the collection of public money, when such officials fail to account for same.”
Defendant filed an exception of no cause of action-, which, as already stated, was sustained. In support of the exception it is argued that the receipt obtained from the district attorney by the sureties is a discharge obtained by the defendant, within the
We are not impressed by this argument. It confounds between a payment made by the sureties in satisfaction of their obligation and one made by the officer in satisfaction of his obligation. When payment is made by the sureties, the obligation of the officer is not extinguished, or even diminished. The sureties are subrogated to the rights of the state, which continue in full force and effect. There is a change of creditors, that is all. To say, under these circumstances, that the officer is discharged, is simply to run in the face of the whole situation. The simple answer is that the officer is not discharged.
In contemplation of law, the sureties pay in every case.- That is what they are sureties for. It does not always work, that way in actual practice, but that is the theory ; and laws are interpreted according to their theory, and not according to what may turn out to be their operation in actual practice. In contemplation of law, therefore, if the interpretation contended for be correct, the disqualification is intended to last only until the sureties shall have been made to pay. Such an interpretation has only to be expressed to be condemned.
To say that article 182 only concerns itself with getting the dollars into the- treasury, and cares for naught else, is to degrade this important constitutional provision, for whose history see State ex rel. v. Echerveria, 33 La. Ann. 709, into a mere expedient for the better collection of the revenue. That function, we are safe to say, belongs to the bond exacted of the officer, and to the sundry other devices to that end to be found in the revenue law, and not to this important constitutional provision, which looks, not to the collection of the revenue, but to the general police and good order of the state, to keeping out of office those who by defalcation in the past have proven themselves untrustworthy, and to deterring defalcations in the future. A defaulting officer, whose sureties have, in satisfaction of their own obligations, paid up, is not more worthy of trust than an officer whose sureties have not paid up. And what terrors could this law have if a payment by the sureties, a thing supposed to take place in every case, were to disarm it?
The cases cited by the learned counsel for defendant are easily distinguished by the fact that in them the payment was made by the officer himself.
The exception of no cause of action should have been overruled.
Before the exception was tried, defendant filed his answer; and thereupon plaintiff filed a supplemental petition, designed to meet some allegations of this answer. On objection being made that this supplemental petition was in the nature of a replication, and that replications are not allowed in our practice, the judge dismissed the supplemental petition. Plaintiff complains of this ruling; but it was manifestly correct. “Replications are not permitted by our law, and so all allegations in the answer are open to every objection of law and fact, as nonage, coverture, fraud, prescription, and the like, as if specially pleaded.” Hen. Dig. p. 1155, No. 1.
Judgment set aside, and case remanded, to be proceeded with according to law.
