author: Levy, J. Poché, J.

text:
    No. 8123.
    The State of Louisiana ex rel. W. E. Howell, District Attorney pro. tem. et al. vs. Arthur J. Echeveria, Sheriff, et al.
    On the Motion/to Dismiss.
    93io Intrusion into office Act is yet in force and linropealed or unaffected by any provision in the Constitution of 1879.
    In proceedings under tliat Act, the failure of the State to appeal does not prevent any other party in interest from doing it.
    Whilst this Court will not compel the Attorney General by Mandamus to tako and bring up an appeal in the name of the State, still that officer cannot bind the State by acquiescence in a judgment adverse to her.
    A mere allegation of acquiescence, contained in a motion to dismiss, unsupported by affidavit, does not justify tbo remanding of a cause for the purpose of having the question as to acquiescence tried in the lower court.
    On the Merits.
    The State has the undeniable power to prescribe qualifications as conditions precedent to the right to hold office, and, in ordaining such qualifications, the State Constitution could enact provisions with a retrospective effect, without violating the Federal Constitution.
    Article 171 of the Constitution, providing for the ineligibility of public officers for certain causes, was intended to have a retroactive operation as well as to provide for the future.
    The reason, object and means of enforcing said Article 171, fully considered.
    In an issue as to the eligibility of a public officer under the, same Article, the discharge obtained by him from the competent authority cannot be attacked collaterally. It must be done directly, and the discharge must be averred to have been obtained by fraud or error.
    The admission of Defendant, that he has made no settlement with the School Board of the Parish for school funds, though coupled with the allegation that he has disbursed more money than he received, on account of said Board, and that his vouchers have been filed with the State Auditor, — is a full solution of the question at bar. As he has not obtained his discharge from the proper authority, the School Board, he is not eligible under Article 171.
    APPEAL from the Second Judicial District Court, parish of Assumption. Knobbloclc, J.

      Pugh & Howell, for Plantiffs and Appellants :
    On the Motion to Dismiss.
    First — Bight to appeal must be tested by the state of facts existing at the time the appeal is taken. 20 An. 870, 112; 28 An. 231; 10 An. 324, 155; 14 An. 708; 14 An. 426 ; 32 An. 348 : 28 An. 562; 30 An. 131; 31 An. 121; 10 L. 252; 13 An. 417 ; 14 A. 708; 6 L. 586.
    Second — When' motion for appeal is made in open court, jurisdiction of Supreme Court attaches on the signing of the order and filing .bond. The State of Louisiana being exempt from giving bond, tbe signing of the order of appeal vested the jurisdiction of the appellate court. Supreme Court jurisdiction having once attached, the court a qua has no longer authority to take any steps but such as may be necessary to transmit the record to the appellate court. C. P. 514; 28 An. 542; Hen. 73, Ho. 3; 20 An. 293,* 27 An. 431, 97, G84, 446; 24 An. 601, 599; 32 An. 816 ; 29 An. 350 ; 21 An. 154; 19 L. 173; 22 An. 518, 450; 21 An. 210, 213; 1 ®. 527; 2 An. 628; 32 An. 15; 23 An. 31; 22 An. 39, 589; 25 An. 623; 32 An. 551; 25 An. 666; 10®. 419; 30 An. 1016, 1028; 14 An. 157; 20 An. 236; 28 An. 568; 8 An. 434.

      Third — The State of Louisiana, Police Jury and School Hoard of the parish of Assumption are co-plaintiffs and joint litigants. The police jury and School Hoard have the right and authority to employ associate counsel. On motion of District Attorney, the associate counsel in this case were placed as attorneys of record for the plaintiffs. The District Attorney is estopped by his judicial admission in the pleadings from denying authority of associate counsel. 5 An. 119, 710; 28 An. 163; 24 An. 136; Dillon, p. 389.
    Eourth — Tbe right of appeal, the amount being sufficient, is guaranteed by the Constitution. 21 An. 114, 65; 28 An. 548, 881; 30 An. 71; Art. 81 Const. 1879.
    Fifth — The District Attorney is not the State, but only the counsel for the State, and cannot acquiesce in a judgment under the intrusion in office act to the prejudice of the co-plaintiffs. 25 An. 434; 30 An. 70; 27 An. 320; 3 An. 292; 29 An. 147; 28 An. 344.
    Sixth — The appeal bond being in favor of “ clerk of court,” are parties before the court. 23 An. 376; 30 An. 181; 24 An. 442; 25 An. 37-220; 26 An. 220, 312; 32 An. 30.
    Seventh- — Under the intrusion in office act, the suit must be brought in the name of the State* on the relation of any person interested, the name of such person being joined with the State as plaintiff. The duties of District Attorney under this act are ministerial; can be forced by “mandamus ” to bring suit and to prosecute it. Secs. 2593, 2596 B. S.; 21 An. 655; 25 An. 15, 365; 24 An. 149; 31 An. 643; 23 An, 787.
    Eighth — Ho inquiry can be made on a motion to dismiss, as to the interest of parties appealing. This comes up on the merits. 21 An. 670; 26 An. 43; 30 An. 70; 28 An. 548.
    Hinth — Appeal bonds are for the amount fixed by the District Judge; this suffices. Hen. 51, Ho. 6; 26 An. 530; 31 An. 501; 27 An. 97; 21 An. 597; 20 An. 341; 24 An. 551, 475.
    Tenth — The State of Louisiana is exempt from furnishing bond. She is sovereign, and in requiring other parties to give bonds, she is legislating for her citizens, and not imposing restrictions upon herself. 1 Kys. 262; Bex vs. Earl, Hun bury 33; Bex vs. Pickey, Id. 202; 3 McL. 483; 5 MoL. 133; 3 Pet. 12; 5 Pet. 293; 14 Pet. 315; 20 Wal. 255; Greinn vs. Pendergast, 2 B. 237. “From giving the surety no appellant hut the State can be dispensed.”
    Oh the Merits, oh Applicatioh eor a Rehearihg.
    First — What is the nature and true and only object of this action ? Hone other than to test the defendant’s eligibility to be elected to and hold office. B. p. Pet.; B. S. See. 2593.
    Second — This is a statutory remedy, and can be applied only in the manner and only for the purpose expressly pointed out by the statute. B. S. Sec. 2593 et seq.
    Third — Ho examination of accounts can be gone into, no moneyed judgment rendered either in favor of plaintiff or defendant.
    Fourth — The judgment to be rendered here cannot be pleaded in bar against any suit brought, or to he brought, against this defendantfor a moneyed judgment. Hor can this action be pleaded asm judicata against the school board suit. The objects of the two suits are entirely distinct, and the issues in no manner connected. The one is for a moneyed judgment by a municipal corporation, the other a suit brought by the State of Louisiana to test the eligibility of one of her citizens to hold office. 29 An. 230; Hennen, vol. 1, p. 760, Ho. 3 et seq., Ho. 11. 1
    Fifth — The intension into office act is not repealed by the Constitution of 1879, and' is the proper and only remedy to he applied in cases of this nature. Const. Arts. 258,152,196, 201; 32 An. 942.
    Sixth — The only fact to be ascertained is, does defendant meet the requirements of Art. 17Í of the Constitution of 1879, viz., did h© possess, or had he obtained on the day he was voted for, proper discharge for all public funds to him entrusted. Const. Art. 171; B. S-Sec. -.

      Walter Guión and B. N. Sims for Defendants and Appellees:
    Oh Motioh to Dismiss.
    First — In all intrusion suits the State is the only real party plaintiff, and all proceeding® therein must be originated and conducted by the District Attorney or Attorney General. 21 An. 655-710.

      Second — Private individuals have no right to contest the title of a public officer or inquire into his right to hold office. 23 An. 25-784; 26 An. 272; 21 An. 655-710; 25 An. 364.
    Third — Mandamus was the only remedy by which to force the bringing up of an appeal by the District Attorney. 23 An. 786; 24 An. 149.
    Bourth — Ho appeal will lie where judgment has been acquiesced in, and this Court should re-t mand the case for the purpose of taking evidence on that issue. 23 An. 272; 3 An. 115; 23 An. 37; 20 An. 574; 29 An. 576; 22 An. 105; C. P. 567; 28 An. 743; 18 Ah. 59-264.
    Bifth — Ho appeal bond has been prescribed by the State, the only party entitled to appeal, and the only appellant, if suoh there be, and the appeal should be dismissed.
    On the Merits.
    Birst — That defendant can be removed only by an address of tho Legislature, and not by a suit under che Intrusion Acts, which have been repealed by the adoption of the Constitution of 1879. See Arts. 152,196, 201 of the Constitution of 1879; 28 An. 445; 32 An. 941 et seq.
    Second — That the defendant, although not in possession of a written or technical discharge from the school board, holds the discharge contemplated by article 171 of the Constitution of 1879, having shown that he had paid out for account of said board more than he had received, and that this fact of overpayment is admitted by counsel for plaintiff. Becord, pp.
    Third — That tho school board, having made itself a voluntary party plaintiff with tho State, and having raised and tendered the issue of defendant’s liability for school funds and the amount thereof, is bound by the admissions made in this case and the evidence adduced therein, and is precluded from contradicting or denying said evidence and admissions, which operate as an estoppel and form res judicata in the school board suit. Hennen, pp. 518, 519, 520, 521, 522, 523; 8 An. 126; Hennen, p. 761, Ho. 11; 24 An. 3; 20 An. 293; 12 An. 197; Hennen, p. 520, Ho. 25; 26 An. 112; 28 An. 625.
    Bourth — That by raising with and tendering to defendant in this suit the issue of liability and amount of his indebí edness to the school board, it has virtually abandoned its suit against defendant as a separate action, and consolidated it with this suit, and all the issues raised therein having been tried and determined in this suit, virtually puts an end to the suit of the school board, no objection having been made by any of the plaintiffs in this suit to all inquiry into defendant’s liability for school funds and the amount thereof. Hennen, vol. 1, p. 1142, III. Ho. 2; p. 520, Ho. 25; p. 766, Ho. 42; p. 145, Ho. 4; p. 1539, Ho. 4; 10 An. 7.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Levy, J.

Appellee has filed a motion to dismiss' this appeal on the following grounds:

1st. Because no appeal has been applied for by or granted to the State of Louisiana, the only party in interest, entitled, as plaintiff, to ask and apply for an appeal herein.

2d. That, even if any appeal has ever been applied for by plaintiff, the State of Louisiana (which, however, is denied), nevertheless the judgment of the Twentieth District Court herein in favor of defendant, has been acquiesced in by plaintiff and by the District Attorney representing plaintiff.

3d. That no appeal bond has ever been furnished by plaintiff, the only appeal bonds herein having been furnished by the Police Jury and by the School Board of the parish of Assumption, who have no right or interest to appeal from, the judgment herein; the only party in interest being the State, which has not appealed herein.

1st. The order of appeal was granted oh motion made by counsel of plaintiffs. The District Attorney, the official representative of the State in this suit, had joined with him on the relation the Police Jury and School Board of the parish. The associate counsel for the State as well as other plaintiffs, had been recognized as such by this officer and on his own motion they were placed as attorneys of record for plaintiffs. The failure of the State to appeal does not prevent any other party in interest from taking an appeal, as this Court has recently decided in the case of State ex rel. Eord vs. Attorney General (not yet reported).

2d. In the'case just cited, we distinctly held that, while this Court would not (under mandamus) compel the Attorney General to take and bring up an appeal in the name of the State, still such officer could not bind the State by acquiescence in a judgment adverse to her. And in this connection we may declare that a mere allegation of acquiescence contained in a motion to dismiss, unsupported by affidavit, does not justify the remanding of a cause for the purpose of having the question as to acquiescence tried in the lower court. Such practice, if sanctioned, would open the door to tedious and injurious delay and dangerous postponement of the settlement of the rights of parties litigant, and might work great wrong and injustice. To remand causes on mere allegations of acquiescence, not sworn to and not suggested in the record, would place in the hands of one of the parties to the appeal a means of protracting litigation unfair and injurious.

3d. The State is not required to give bond and security for an ap- • peal in her own courts. 2 Rob. 237.

The motion to dismiss is denied.

On the Merits.

The State of Louisiana, on the relation of the District Attorney pro tempore, of the Police Jury and School Board of the parish of Assumption, instituted suit, averring that the defendant, who claims to have been elected and commissioned as sheriff of said parish, is ineligible, under Article 171 of the Constitution of 1879 to hold and exercise the duties and functions of this office; that in the years 1871 and 1872, the defendant was tax collector of said parish, and from 22d of March, 1872, to 17th of April, 1873, treasurer of the School Board of said parish; that, in his said official capacities, he received large sums of money, and that he is a defaulter, to a large amount, for the State and parish taxes collected by him; that he has never received a discharge for the amount of such collections and for all public moneys with which he was entrusted. The prayer of the petition is that the defendant be decreed to be ineligible under Art. 171 and absolutely disqualified and prohibited from holding said office of sheriff.

Defendant, after pleading a general denial of the allegations of the petition, except as specially admitted in his answer, admitted that he filled the several positions as set forth, that he was Treasurer of the School Board and that he received from the State Treasurer a certain amount as the apportionment of the school fund belonging to his said parish, but denied that he ever diverted said amount from its proper channel. He avers that, after he ceased to be treasurer of the School Board, a committee was appointed by a subsequent School Board to examine his accounts as treasurer; that, after this committee had examined his accounts, they made a report to their School Board, that his accounts were correct and that he had properly accounted for all funds coming into his hands as treasurer of the Board; that said report was ratified and approved by the Board and that this action constituted his discharge; that a short time prior to the 20th of March, 1874, he turned over to Thos. L. Winder, then District Attorney, who was charged with the settlement of all claims in favor of the State and the School Board, all his vouchers and receipts, as treasurer, for moneys paid out and disbursed by him, which largely exceeded the amount of school funds received by him as treasurer, and that said vouchers and receipts were delivered by said Winder to Charles Clinton, then State Auditor, at the rime defendant made a settlement with them for moneys received by him as State tax collector for 1871 and 1872, which vouchers and receipts have never been returned to him, which vouchers and receipts will show that he is in no manner liable or responsible as School Treasurer aforesaid; that, on the 26th of March, 1874, he received from the State Treasurer and Auditor of Public Accounts of the State of Louisiana, his final discharge and quietus as such for the amount of State taxes collected by him as State tax collector during the time he held said office; that on the 8th of October, 1875, he made a full and final settlement with the Police Jury of the parish of Assumption, for all parish taxes collected by him as tax collector during the aforesaid years, and was by said Police Jury discharged from all liability on account thereof and granted a full discharge and quietus by reason thereof. He pleads the unconstitutionality of the Acts of the General Assembly, Nos. 58 and 156, approved September 8th, 1868, and October 15th, 1868, as being in conflict with Articles 152,199 and 201 of the Constitution of 1879; and that Article 171 is not retroactive and does not prescribe for causes of ineligibility arising previous to the adoption of said Constitution, and, if construed as being retroactive and retrospective in its operation, it is in conflict with Article 1, Section 10 of the Constitution of the United States, which declares that no State shall pass any ex post facto law.

The sole question for our decision in this case, under the pleadings, is the eligibility or ineligibility of the defendant to hold the office of sheriff; and it is still further narrowed down to the question whether or not the discharge or discharges which he alleges he has obtained, have been granted to him by competent authority, and fulfil that requirement of the article of the Constitution necessary to be observed and complied with to relieve him from the disabilities, without fulfilling which, such disability would rest upon him.

The right of the State, in its organic law, to prescribe general and uniform qualifications for the exercise of the voting franchise, is indisputable, and equally clear is her right to prescribe the qualifications for holding office. Limitations of this character are not obnoxious to the objection that they restrict natural or divest vested rights. It cannot be denied that she has the right of declaring when or at what age the voting franchise may attach, or at what age eligibility to hold office shall accrue, or that on reaching a certain age this eligibility to continue in office shall cease. The right to hold office is not a natural or divine right, at least under our constitutional and republican form of government, but thereunder offices are the creatures of popular will and appointments or elections thereto are not demandable of right by those who desire or seek office; on the contrary, those who create the offices and confer the positions are alone the arbiters between the wishes or demands of the aspirants and their fitness for place. To define the qualifications and limit the eligibility for office is no infringement upon, much less a divestiture of, vested rights. It seems to us unreasonable to limit the right to hold office to disqualifications arising subsequent to the adoption of the organic law, when its very object as gathered from its plain letter and obvious policy is to apply the disqualifications denounced to the existing status of persons at the time the instrument goes into effect, as well as to that which may subsequently arise or occur. Suppose a clause had been inserted in the Constitution declaring persons ineligible to the office of governor or judge after he shall have attained the age of seventv years, and previous to the adoption of such Constitution this ineligibility had not existed, would it be contended that one who reached the prescribed age prior to the adoption, did not fall under its operation and it was only applicable to those thereafter attaining the age?

Article 171 has no ambiguity. It was in our opinion intended to be retrospective and, if retrospective, it does not fall within the constitutional inhibition. In 11 Peters, 420, O. J. Taney delivering the opinion of the Court said: “It is well settled by the decisions of this Court that, a State law may be retrospective in its character and may divest vested rights, and yet no,t violate the Constitution of the United States, unless it impairs the obligation of a contract.”

“ In order that a law should be ex post facto, it must inflict some legal penalty, and this must consist in taking away a legal right or imposing some legal burden. The subject of electoral capacity has been left to the States absolutely untrammelled, except by the provisions respecting race and color, and any changes which the State may think best to make in defining the qualifications of voters, do not take away any right or impose any legal burden and cannot, therefore, be ex post facto laws, however much they may apply to past acts and transactions.” Sedgwick on Construction of Stat. and Constitutional Law, p. 558; Pomeroy’s Constitutional Law, $ 532-535. The above is surely applicable in its full force to qualifications which may be required for holding office. 4 Wall. 172; 11 Pet. 420; 10 Howard, 395; 17 How. 456; 10 An. 745; 20 An. 533.

The article under discussion provides that those who have done certain reproachable acts shall be ineligible to public office in the State. A careful reading of this article, taking into consideration its manifest object and intention, conclusively shows that the disqualification for the future, embraced acts done in tbe'past. It reads: “ No person who at any time may have been,” etc. If intended to apply only prospectively, it would have been couched in such words as no person who shall be, etc., no person loho shall hereafter be, eta. Hence, we are satisfied that the disqualification imposed includes in its disabilities and affects those who have in the past fallen into the category named, until they shall cleanse themselves or “shall have” cleansed themselves in the manner distinctly pointed out in the closing clause of the article.

The pleadings and the evidence in the record show that the defendant had filled the certain offices as charged in the plaintiff’s petition; that he had been entrusted with the public money and, therefore, in order that he should be eligible to office, he “ should have obtained a discharge for the collections made, and for all public moneys with which he may have been entrusted.” The construction of Constitutions, as well as of statutory laws must be governed by fixed rules and not left to arbitrary discretion or interpretation. The first thing then, to be ascertained in construction of statutes, is: the object to be attained, and, second, the means to be employed. The first “ is, as a general rule, the intention of the law-maker ;” the second, “ what facts within and without the statute are to be inquired into to ascertain the intent of the doubtful phraseology.” (Sedgwick on Construction, etc. 193).

As to Constitutions: “ The whole must be considered with a view to ascertain the sense in which the words were employed; and its terms must be taken in the ordinary and common acceptation, because they are supposed to have been so understood by the framers and by the people who adopted it. This is unquestionably the correct rule of interpretation. It, unlike the acts of our Legislature, owes its whole force and authority to its ratification by the people, and they judged it by the meaning apparent on its face according to the general use of the words employed, when they do not appear to have been used in a legal or technical sense.” Id. 413.

In this case the defendant, as we have seen, pleaded that there was no outstanding indebtedness by him to the State, the parish or the School Board, and that he had received a discharge from these several parties plaintiffs, and having been duly elected and commissioned, was entitled to the office of sheriff, to hold which office, plaintiffs claimed that he was not eligible.

Article 171 prescribes that thedneligibility which it declares, shall continue only until the discharge shall be obtained. Whenever this discharge is had, his eligibility, which had been suspended, springs into existence. We are then called upon to further construe this article and interpret what constitutes the discharge required by the article. Applying the rule of construction, as laid down by the above authorities, we give to it the meaning of “ its ordinary and common acceptation,” in order “to ascertain the sense in which the words were employed.” We think the ineligibility was intended to continue and remain in force as long as the indebtedness to the State, the parish or the School Board existed, that is, as long as they or either of them had any legal unsatisfied Claim against the defendant. How or in what manner the discharge of the indebtedness or claim should be given, is not pointed out or prescribed by the article of the Constitution; no sacramental form is indicated or required. Indebtedness may be discharged or extinguished, in the ordinary or common acceptation of these words, in many ways, viz: by payment, compensation, voluntary release, transaction, etc., and when extinguished by any of these modes, a discharge, to all practical intents •and purposes, is had.

As to the alleged indebtedness of defendant to the State growing out of his collection of State taxes, that indebtedness was fixed for a part by judgment obtained in favor of the State against him, which judgment appears in the record to have been satisfied. Eor the remaining indebtedness claimed under the transaction of compromise between the State and her proper officer, he made settlement with the Treasurer, authorized by the Auditor, receipt in, full was given for the amount fixed and agreed upon-in this transaction, and the usual discharge or quietus was issued by the last mentioned officer.

Under Sec. 176 R. S., it was made the duty of the Auditor, “ to audit, adjust and settle the accounts of collectors of the revenue and other holders of the public money, who are required by law to pay the same into the treasury.” Art. 178 R. S. enacts, that, “ whenever the Auditor shall be satisfied, either from his own knowledge of fact, or by returns made on execution or writs of fieri facias, that the State cannot make the amount due on the old bonds or obligations due the State, by compulsory process, then he is authorized to enter into such arrangements and make such compromises, either with the principals or their securities, as he may think most advantageous for the State, and to cancel such bonds or obligations upon payment of a portion thereof, and he shall report to the General Assemby the action he has taken and his reasons therefor;.” We think that, under the authority vested in him by this section, the Auditor had the right to make the arrangement and compromises whereby he, for sums paid by the defendant, extinguished the obligations of the defendant, and the claim of the State was satisfied and the defendant released and discharged from further liability for the collections made by him as tax collector. Plaintiffs’ counsel contend that the Auditor’s authority under Sec. 178, is limited to old bonds, given before the passage of the act. We cannot agree with him, but think the construction placed on it by defendant’s counsel is the correct one, that is, by the words '' old bonds ” is evidently meant such bonds as have been given by those officers whose terms of office have expired, as contradistinguished from the bonds of officers who are in the actual performance of the duties of their office and whose terms of office have not expired.

As to the alleged indebtedness to the parish, we think the settlement of the Police Jury with the defendant and the quietus or discharge granted him, operates also as a discharge and cannot be attacked collaterally in this case, especially as it has not been alleged, even, that it was fraudulent, and we are, therefore, not called upon to express an opinion as to the right’to attack it and seek to set it aside in a direct action, or upon proper allegations in this.

The alleged indebtedness to the School Board is denied by defendant and the evidence in the record shows that the defendant had received as Treasurer of the School Board, from the State Treasurer, the State apportionment to the School Board, or school fund of Assumption parish, the sum of $±,552 90, and that, in his capacity of School Treasurer, he had paid valid school warrants, for an amount largely exceeding that which he had received, and that these warrants, including the excess of his disbursements over his receipts, were deposited or surrendered to the Auditor, his claim (for such excess) being $±,223 35 against the State, for and on account of the State apportionment of school funds due or to become due to his said parish, and in settlement of the State’s claim against him, he relinquished his own claim against the school funds and surrendered the whole of his vouchers and the receipts evidencing his claim.

It is true that no formal or technical discharge was ever given him by the School Board, based upon any technical settlement with the Board, but the evidence discloses that he paid out on valid warrants of the Board an amount exceeding the sum which had come into his hands as treasurer, and no actual indebtedness existed on his part. There is no evidence disproving the payments, adduced by the plaintiffs. Regarding the object and intention of the constitutional provision to be for the purpose of preventing defaulting public officers from holding any office until they had discharged their obligations or as long as they were indebted to the State, parish, etc., on account of collections made by them or public moneys entrusted to them, and finding that the record shows n'o actual indebtedness existing, by reason of the payments made and the offsets held by him, we are forced to the conclusion that the defendant, under the spirit of the law, does not fall within the category of ineligibility as charged in plaintiffs’ petition.

The judgment of the lower court is, therefore, affirmed with costs.

On Reheabinu.

The opinion of the Oourt was delivered by

Poché, J.

In re-opening this case we entertained no doubt as to the correctness of our conclusions on the preliminary questions raised in the pleadings and argued by counsel in their briefs.

We, therefore, reiterate our opinion in maintaining the right of the District Attorney pro tem. to bring this action, under the intrusion into office act, which we recognize as yet in full force and vigor, and unrepealed or unaffected by any provision in the Constitution of 1879, and we reassert the reasons under which we disposed of the motion to dismiss this appeal.

But we entertained some doubts as to the correctness of our construction of Art. 171, one of the most important provisions of the present Constitution. Peeling that, in considering such an article, which now comes up for the first time for our investigation, in which we were necessarily not guided or assisted by any authority in point, we might have committed an error, we granted a rehearing on the question of the validity of the discharge which the defendant had set up in support of his eligibility to the office which he now holds. •

After a careful attention to the able oral argument of counsel on both sides, and a close study of their exhaustive briefs, on rehearing, and after grave thought and reflection on the momentous questions involved in this controversy, we have reached the inevitable conclusion that we were in error in the construction which we had given to the ’ article under consideration, and in our conception of the issue, which must be confined to the eligibility of the defendant, as evidenced by a discharge obtained by him from the competent- authorities, with whose funds, respectively, he had been intrusted, and that, therefore, we should not have considered the question, as to whether, under the evidence, ■he was or not yet indebted to the school board on account of any funds which he received in trust for said authority. Believing that the question of indebtedness or extinction of the same, otherwise than by a discharge obtained, from the competent authority, should have been eliminated from the ease, we shall now proceed to determine the defendant’s status as to eligibility, under the qualifications prescribed by the Constitution in Art. 171.

In our first opinion we demonstrated that the right to hold office was not a natural or a divine right in a republican form of government, but that it partakes more of the nature of a privilege; that the State has the undeniable right to prescribe qualifications as conditions precedent to the exercise of such right, and that in ordaining such qualifications, a State Constitution, without violating the Federal Constitution, could enact provisions with a retrospective effect.

Hence it follows that ineligibility, flowing from acts omitted or committed in the past, could be and was contemplated in Art. 171, and that, if such ineligibility can be brought home to the defendant in this case, he must be excluded from the office which he now holds.

In construing this article we shall consider that the safest rule in the construction of constitutional ‘ provisions, as well as of statutory laws, is to investigate or discover, 1st, the reason of the law; 2d, its object; 3d, the means of carrying out the object proposed.

1st. By the light of history we know that the reason which imperiously dictated the policy embodied in Art. 171, is to be found in the numerous defalcations of fiduciary officers, whose short-comings had so seriously crippled the finances of the State.

The annals of the courts show that the parishes which were not the 'scene of such pillage, under color of their offices, either by tax collectors, officers of school boards, parish treasurers or other officers intrusted with the collection, administration or custody of public moneys, were among the few exceptions. The criminal dockets of the district courts shamefully teem with prosecutions against offenders of this class. And the history of those days also reminds us that, owing to corrupt political alliances, and other baneful influences, the accused were generally allowed to go unwhipped of justice, and that in many eases the odious culprits were soon after rewarded with other lucrative appointments in different localities. The natural and inevitable result of such spoliation was the increase of the burden of taxation on the one hand, until the weight was actually intolerable to the people; and the increase, on the other hand, of the debt of the State, whose revenue, extracted from the very life-blood of an impoverished people, was thus squandered or otherwise misapplied, and was not forthcoming for the payment of her just liabilities. It is not rash to assert that through this system of organized plunder and robbery, millions of the people’s' money, extorted from them by means of tyrannical and oppressive taxation laws, found its way into dishonest hands, and never reached the coffers of the State. So much and such glaring dishonesty in public officers, who always succeeded in evading the law and escaping the just punishment of their criminal acts, had necessarily a very demoralizing effect upon the good people of the State, who soon lost all confidence in the officers by whom they were ruled, and all respect for a government ever ready and punctual in the enactment and enforcement of laws increasing the burdens of government, but always unwilling or powerless to execute the laws intended for the protection of society. Such a feeling of demoralization and dispondency among a people, unless checked at once, is always the forerunner of the decay or downfall of a republican government. Such was one of the many evils which confronted the Convention, whose members came fresh and direct from the people, with the solemn mandate to speedily check, by proper legislation, the further spread of this alarming and deep-rooted evil. The disease was serious and dangerous; it pervaded the whole body-politic, and it had to be met with heroic treatment. Hence the delegates proposed to the people the provisions embodied in Art. 171, under which unfaithful officers wero to be cut off from the further exercise of power in the State; and we do not hesitate to assert that no feature of that Constitution received a more cordial support from the honest citizens of the State.

2d. After considering the reason of the law, it is easy to discover its object, which was to prevent a recurrence of the evil which prompted the legislation. It was intended to guard the people against the appointment, in the future, of men whose records were not unsullied and whose hands were not clean; of men who had failed to faithfully account for every dollar"of public moneys intrusted to them in any capacity; and to give solemn assurance that no unfaithful, incompetent or dishonest official would ever be tried or appointed more than once.

The grand and patriotic object was, in removing all that class of dishonest officials from the possibility of ever again handling and spoliating public moneys, to deter their successors from following in their paths, and thus to restore to public officers the respect of their fellow-citizens, and to the State government, the confidence and the warm and active support of its good people, without which no government can exist or maintain itself.

3d. We have now to consider what was the nature of the means suggested for the accomplishment of such an important and vital object. They must of necessity be energetic in kind, simple in their scope, and .easy of execution. Hénce it was proposed to exclude from the right of holding any office of honor, profit or trustj any person who may, at any time, have been intrusted with public moneys or any portion thereof, until he shall have obtained a discharge for all such public moneys.

Such a discharge, obtained of course from the proper authority, that is from the power or body from which the mandate or trust emanated, or for whose account the funds were received, was thus imposed as a condition precedent to eligibility in this State.

Hence it could not be contemplated that the discharge of a school board treasurer could be given by the State Auditor, any more than it could be contemplated that such a discharge could be obtained from the school board of a different or neighboring parish.

It follows, on the contrary, as a corollary from the main proposition that a discharge for State money must emanate from the State Auditor, guided by the laws governing such cases; that V discharge for parish funds must be issued by the police jury in conformity with law, and that a discharge for school money must be granted by the school board of the parish, in accordance with the powers conferred to it by law. And that the discharge, in either case, must appear of record in the proper office, must be of easy access to the public, and susceptible of being produced without delay, when needed. It was intended that the candidate, whose eligibility on that score would be questioned, either before or after the election, could at once refer to his discharge and quickly dispel all doubts as to his status. In a word, it was.the manifest intention that, among former tax collectors and other persons heretofore intrusted with public moneys, none but those “ clad in that livery,” should aspire to the honors of a public office. It never entered the mind of the Convention that the question of indebtedness or extinction thereof, on the part of an officer elect, could ever be the issue in any litigation growing out of his alleged ineligibility for want of such a discharge, as a condition precedent to his election.

Nor was it ever contemplated that in a litigation of this kind, long intricate and confused accounts of a fiduciary officer claiming to be eligible, should be examined- and settled by the court, under the simple issue of eligibility vel non.

The framers of the Constitution, in adopting this ordinance, understood that the certificate of fidelity to be obtained by the officer, must emanate from the body to whom he is accountable, to whom he must primarily and in due time present his accounts for examination and approval, and that the only issue to be presented to the courts would be the existence, or perhaps the validity of the discharge. It was contemplated that the issue thus presented and thus simplified would be speedily tried and determined, so as to avoid among the people any suspense or doubt as to the legal status of the officers elected by them or appointed for them. Any other construction would defeat the object proposed by the Convention, and deprive the State government of the means of purifying the political atmosphere.

Let us now apply these principles, as a test in the case of this defendant, who admits to have received public moneys, as State tax collector, as parish tax collector and as treasurer of the school'board of Assumption parish, and who urges his eligibility on the ground of a discharge obtained from the State authorities, and a like discharge from the police jury, and on the ground of his having overpaid the school board. We find in the record a settlement which he made for State taxes with the Auditor, who thereon granted him a quietus; and we find a similar discharge emanating from the police jury of Assumption, for parish taxes collected by him.

Plaintiffs’ counsel urge and argue with considerable force that neither of those settlements, both of which appear on their faces to be mere adjustments or compromises, comes up to the standard required by the Constitution, which demands of the fiduciary officer a discharge for all moneys which had been intrusted to him.

But, on this question, we adhere to the ruling in our previous opinion, and will not allow a discharge emanating from a competent authority to be attacked collaterally, especially in the absence of any allegation of fraud or other malpractice in the manner of granting or obtaining the discharge.

We must be controlled by a discharge issued by the competent authority, unless it be directly attacked as fraudulent or erroneous. But> in so far as the school money is concerned, the defendant candidly admits that he has made no settlement with the school board, and that, therefore, he holds no discharge from that body, which was the competent and the only authority empowered to examine and settle his accounts, and to give him the discharge contemplated by the constitutional requirement. This admission is of itself a full solution of the whole question under the construction which we have placed on Art. 171.

His allegation that he has paid out more money than he had received, on account of the school board, cannot be entertained under the issue as narrowed down by the constitutional requirement, and all the evidence which he introduced in support of such an allegation, which consisted of an exhibit of school warrants which he had filed with the Auditor, an utter stranger in the premises, should have been excluded on the objection of plaintiffs’ counsel, as entirely irrelevant and foreign to the issue. We do not propose to impugn either the character or the motives of this defendant, in thus declaring his ineligibility to the office which, he now illegally holds. But our duty is to give judicial vitality to an important article of the Constitution, calculated to give immense relief to the people of this State, to restore strict honesty in the administration of public moneys, and to strengthen the stability of our republican institutions. And if the defendant falls an innocent victim under a vigorous construction of an article looking to a reform in government, we may sympathize with him but are powerless to relieve him.

It is, therefore, ordered that our previous decree herein be reversed and set aside, and it is now ordered, adj udged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed that the defendant, Arthur J. Echeveria, be declared to have- been on the 2d of December, 1879, ineligible to any office of honor, trust or profit under the State government or any parish or municipality thereof, and to have been, therefore, not legally elected on that day as sheriff of the parish of Assumption, which office is hereby declared vacant, and that defendant pay all costs incurred in both courts.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 7792.
    Mrs. M. J. Jackson, Administratrix, vs. Wm. C. Michie and Robert Murdock.
    On the Motion to Dismiss.
    Two appeals having been granted to the same appellant, the appellee moved the dismissal of both.: of the first appeal, for alleged irregularities, and of the second,, on the ground that the first order having once been granted and a bond thereunder filed by appellant, the lower court was divested of jurisdiction and had no authority to issue the second order. JECeld that, if the first order of appeal was illegal, the lower court was not divested of its jurisdiction over the case and could legally issue the second order.
    It has never been held in Louisiana that a party must move for a new trial in a jury case, as a condition precedent to his appeal, though it is, as a general rule, proper that he should do so.
    To take away the right of appeal, there must bo an unconditional, voluntary and absolute acquiescence in the judgment rendered, on the part of the appellant.
    On the Merits.
    The tenant of a predial estate cannot claim an abatement of the rent, under Article 2743, C. 0., on account of an overflow of the Mississippi River. Such an event is not one of the accidents of extraordinary nature that could not have been foreseen by the parties. Decision in 16 An., 162, affirmed.
    The surety is only discharged by a prolongation of .the term o£ payment granted the debtor, when it is granted by a party having the legal authority to do so. The administratrix of a succession lias no such authority 5 and the fact that she was also widow in community does not give her any additional power in that respect.
    An issue which was not raised in the lower Court and is made for the first time in the brief of Counsel in this Court, shall not be noticed or passed upon.
    APPEAL from the Thirteenth Judicial District Court, parish of Temsas. Hough, J.

      Wade It. Young for Plaintiff, Appellee and Appellant.

      Kennard, Howe & Prentiss, Thomas P. Clinton and Reeve Lewis for Defendant Murdock, Appellee and Appellant:
    3?ixSt — The appeal of plaintiff should be dismissed, because she asked for an order which did not give time to cite the appellees, in disregard of § 4, Act No. 45, 1870, Extra Session, p. 100. The fault is imputed to her, because she asked for an improper day. Citizens’ Bank vs. Buty, 26 An. 748; Given vs. Clark, 12 La. 480; Hempkin vs. Averett, id. 483.
    Second — -And plaintiff's appeal should also be dismissed because she opposed the motion for a new trial, acquiesced in the judgment and made no motion for a new trial in a jury case. Barnwell vs. Herman, 6 M. 928; Lambeth vs. McMurray, 15 La. 466; Wright vs. Ferriu, 10 An. 91.
    Third — As to the merits of the cause and on behalf of the defendant and appellant Murdock. It is elementary that suretyship is stHctissimi jwt'is, and cannot be extended from one time to another. Mouton vs. Noble, 1 An. 192 5 Adío vs. Metoyer, id. 254 j HcMichael vs. Gillespie, 7 Bob. 13; Bev. C. C. 3063.
    Extension of time by creditor to principal debtor, without consent of surety, discharges the latter. Bev. C. C. 3063, Gosserand vs. Lacour, 8 An. 75; Projet of Amendments, p. 356.
    Fourth — The facts of tho case show (a) that plaintiff was administering as widow in community, owning ono-half of the plantation and entitled to the usufruct of the other half; (bj that she had a right to lease one-half as owner, and the other half as usufructuary entitled to civil fruits. C. C. 533, 544, 545 5 (c) that she made the lease without order of the Court; (d)that she was not required by order of court or any law to take surety; (e) that extensions were granted to Mickie, the principal, without consent of Murdock, the surety; (f) that plaintiff has never proved any such assent, 1 An. 254; and (g) that plaintiff in taking her judgment waived her privilege on Mickie’s property seized in the suit, and which Mickie had bonded for $1409. Transcript, p. 9.
    Fifth — On these facts tbe following points are made:
    (a). That plaintiff, as owner and usufructuary, no debts or minor heirs being shown, had tho power to grant, and did grant, the extensions, and so discharged appellant, Murdock. C. C. 544, 545; 8 An. 75.
    (b). There was really no need of her formal appointment as administratrix. Burton vs. Brugier, 30 An. 482.
    (c). It would be contrary to equity for plaintiff, presumably of her own volition and for her own purposes to grant the extensions, and then claim she had no xiower to do so.
    (d). There is no question here of her power to alienate the land. It is a question of dealing with the civil fruits which were her own.
    (e). But looking at her strictly as administratrix, it is an error to say tho succession of Jackson is a being that dwells apart, impeccable, infallible, taking advantage of every good bargain which plaintiff may make as to civil lruits, and repudiating such as plaintiff may choose to repudiate. And such theory is refuted in the following cases:
    Turnbull vs. Freret, 5 N. S. 795; Sloan vs. Stevenson, 24 An. 279; Haile vs. McGehee, 29 An. 350; Succession of Marr, 23 An. 718.
    (f). No error or fraud in the extensions is pleaded or proved by plaintiff. If loss occurs to the estate, she is responsible on her bond. 29 An. 350; 24 An. 279;

      (g). The cases cited by plaintiff, analyzed, and shown to be not against the contention of appellant, Murdock, and where they seem to be expressions shown to be mere dicta, or careless utterances, which this Court is asked to correct.
    (h). The defendant Murdock is discharged by act of plaintiff in relinquishing the security she had by seizure in this cause.
    Penn vs. Collins, 5 Bob. 213; Bev. C. C. 3061.
    (i). Plaintiff has no right to have the judgment amended, because she asked for no new trial; because it cannot be amended as between plaintiff and Michie, for both aro appellees; it cannot be amended as to Murdock, for this would be to give a greater judgment against him than against his principal. Bev. C. C. 3037; Gustine vs. Union Bank, 10 Bob. 412; and, finally, the verdict should stand, unless founded on some error of law. 10 An. 02. Our contention is that the verdict and judgment are erroneous in toto, and should be set aside as such; hut in no event should the judgment he increased.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff sues the defendants, the first as principal and the second as surety, to recover the sum of $10,282 60 with interest, alleged to be the balance owing for the rent of the Aubrey plantation, in the parish of Tensas, for the years 1876, 1877 and 1878.

The demand sued on is evidenced b.y a written contract of lease and three promissory notes, signed by the defendant Michie, and by a writing indorsed on the contract of lease and signed by the defendant, Murdock, in the following words:

“ I hereby bind myself as security for the above and foregoing lease without agreeing to sign or indorse the notes mentioned therein.”

The lease was approved by the parish judge of said parish in an order rendered on the 28th of January, 1876, the contract being dated the 8th of December, 1875, and the plantation leased belonged to the succession of D. P. Jackson, deceased, of which the plaintiff was the administratrix.

The lessor’s privilege was also claimed on the crops and movable property on the premises; and a writ of provisional .seizure issued and was executed against the same.

The rent for the year 1878 was not due at the inception of the suit, and an exception against this part of the demand, amounting to $5000, was sustained, and the suit to that extent dismissed.

The defendant, Michie, answered, first, by a general denial, and further claimed in compensation and reconvention amounts aggregating $7600, based on the following causes or considerations:

Amount expended in repairing plantation buildings, alleged to have been damaged by the lessor during the interval between the commencement of the lease, under the contract, and the time when the lessee was enabled to take possession, and for use of plantation mules during that interval; damages resulting from the loss of mules by death, and which, the lessor failed to replace, and damages resulting from the overflow of the land.

The defendant, Murdock, answered, and averred his discharge from all liability for the debt, by reason of prolongations of the terms of payment granted to Michie, his principal, by the plaintiff, witho.ut his-knowledge and consent.

The case was tried before a jury, who returned a verdict in favor of plaintiff for $3770, for which judgment was rendered in solido against the defendants.

From this judgment appeals were taken by both defendants and by plaintiff. The defendant Michie subsequently abandoned his appeal by a formal withdrawal of the same before the execution of an appeal bond.

On Motion to Dismiss.

There is a motion to dismiss the plaintiff’s appeal, which is the first question for our consideration.

' The plaintiff, in fact, applied for and obtained two orders' of appeal, executed two appeal bonds, and filed in this Court two transcripts.

The first appeal was taken on the 24th of January, 1880, and made returnable on the 9th of February, 1880. The second order of appeal was taken on the 3d of May, 1880, returnable on the 2d Monday of February, 1881.

The defendants moved to dismiss the first appeal on the following grounds:

1. That there was not allowed sufficient time by the order to cite the appellees, and it was, therefore, illegal.

2. That tbe plaintiff had acquiesced in the judgment.

And the dismissal of the second appeal was claimed for the reason that one appeal having been granted and the appeal bond executed, the District Court was without jurisdiction to grant the second appeal.

If the first order of appeal was illegal, as alleged, the jurisdiction of the District Court was not divested over the matter of the appeal by the rendition of such order and the execution of the appeal bond under it. It is true that the order of appeal and the execution of the appeal bond in accordance therewith, as a general rule divests the .inferior court of jurisdiction; but this contemplates a valid and legal order, and the giving of a bond under such order. If the order be illegally or irregularly rendered, the judge may correct such error by granting another order in conformity to law, notwithstanding the appellant may have' given bond and brought up his appeal under the first order. The matter resolves itself into this: The first order of appeal was either legal or it was not. If legal, the proceedings under it are regular and legal, and the appeal should be maintained. If the order was illegal, then the granting of it did not divest the judge a quo of jurisdiction, but he could properly disregard it as a nullity and cure the irregularity by a subsequent order, as he did do; and the appeal under such subsequent order should be maintained, that is, if no other cause of dismissal is shown.

In the case of Bates vs. Weathersby, 2 An. 484, where two orders of appeal had been granted, two appeal bonds executed and two transcripts sent up, as in this case, the Court said: “It (the first order) was irregularly taken, and the inferior court had not, by the first order given, divested itself of jurisdiction of the cause, but still retained full authority to grant a second order which would be available to the parties and enable them to be heard in this Court.” See, also, 10 An. 488; Evans et al. vs. Sauvinet (N. R.) O. B. 42, 638; 32 An. 814.

Nor do the circumstances relied on to support the charge of acquiescence on the part of the plaintiff in the judgment of the lower court constitute such proof of acquiescence as to debar him from his appeal.

These are, that the appellant did not move for a new trial, but opposed the motion for a new trial when made by the defendants. It has never been held that a party must move for a new trial in a jury case as a condition precedent to his appeal, though it is as a general rule proper that he should do so. Nor does the record show that the plaintiff opposed the granting of a new trial moved for by the defendants. There was such a motion made by the defendants, tried and overruled. We know as a matter of practice, that such motions are often made pro forma and overruled by the judge instanter, and without discussion. Be that as it may, to take away the right of appeal there must be an unconditional, voluntary and absolute acquiescence in the judgment rendered, on the part of the appellant, and the evidence fails to satisfy us that there was such acquiescence in this instance. It Aoubtless often happens that a plaintiff, in whose favor a verdict is rendered, though it does not give him all that he thinks he is entitled to, is willing to acquiesce therein and receive what it gives him, if the defendant is acquiescent also and willing to pay the amount awarded thereby; but such conditional acquiescence in a verdict does not deprive him of the right of appeal, if he finds that the defendant, instead of paying the debt, resorts to an appeal himself as a further means of resisting its payment.

And, besides, no act of the plaintiff, done after the judgment was rendered and signed, and it is only then that there is a judgment, looking in the least to an acquiescence in it, is pretended to be shown in this case.

An appeal is an important right, which should never be denied, unless its forfeiture or abandonment is conclusively shown.

The motion to dismiss is, therefore, denied.

On the Merits.

1. The demands in compensation and reconvention, set up in the answer of the defendant Michie, in addition to the credits admitted in the petition, are supported by his (Michie’s) testimony alone; and the extravagance of his estimates weakens, in a great measure, if it does not destroy, the effect of his testimony. For instance, he alleges that four of the mules leased with the plantation died during the year 1876, and were replaced by the same number of inferior animals at the beginning of 1877; and three more died in 1877, and were not replaced at all by the lessor; and he actually estimates his damages on this account, for the two years, at $4500. From the extravagance of this estimate and the want of certainty in the evidence, of the real loss sustained from this cause, we were at first inclined to reject the whole claim; but, on reflection, believing that the defendant had some ground of complaint, and in view of the importance of terminating this litigation, we have concluded to allow what it would have cost him to hire other mules, estimating such hire at $25 per head — making $100 for that year (1876), and one-half this sum ($50) for the loss on the inferior mules for 1877; and $75 for the loss of the services of the three mules that died during that year — making the total credit from loss of the mules allowed in diminution of the price of the lease, as authorized by Article 2699 of Civil Code, $225.

As to the damage claimed from the delay in getting possession of the leased premises for more than a month after the time stipulated in the contract, and the use of the mules during that time by the lessor, it might be considered that the defendant had waived such claim by taking possession of the place when he did, without objection, and from his silence at the end of the year, when the rent for that year matured and was paid in part; but, satisfied that he was subjected to loss from this delay and from the use of the working animals by the lessor during this interval, we have deemed it but just that some allowance should be made Mm for this cause; and the proper allowance, as far as we can gather from the evidence, would be $400. The damages or reduction claimed on account of loss from the overflow and injury to the crop therefrom cannot be allowed. C. C. 2743; Vinson vs. Graves, 16 An. 162.

This makes the total credits to which the lessee, Michie, is entitled Hinder his pleas, amount to $625.

2. The only questions presented by the answer of Murdock, are, 1st, whether there were prolongations of the terms of payment granted the principal debtor, Michie, without his (Murdock’sJ knowledge or consent; and, 2d, if so, whether Murdock, the surety, was discharged by the effect of the same.

The evidence of the extension of time granted for the balance due on the rent note of 1876, appears by an endorsement on the note signed by the plaintiff.

In regard to this extension, Miehie says it was agreed to about the time he paid' $1000, which he obtained from Murdock to pay on the note; that the payment was made in Murdock’s store; that Murdock might have been in the store at the time, and that a day or two after-wards he told Murdock of the extension, and does not state that Murdock made any objection to it. The extension on the second note, and this was granted without the consent of Murdock, is supported alone by the testimony of Miehie. The testimony of Murdock might have thrown additional light on this point so essential to his defense, as to his knowledge or ignorance of the alleged indulgence; but, singular to say, although a resident of the place where the court was held, he was not called as a witness, and we are without the advantage of his testimony. It is apparent that there was a studied design, on the part at least of Miehie, to obtain these prolongations, and evidently for the advantage of his co-defendant and surety, Murdock. This is shown by the frequent appeals he made by letters for indulgence, and the care taken to designate the exact time or number of days of the delay asked for; and the offer to pay a small amount in consideration of the indulgence, and tender it before the maturity of thé’ note; and, whilst making lavish promises of payments, to be made on the indulgence being granted, to turn over nearly the entire crop of cotton to Murdock, and leave the whole of the rent for 1877 unpaid, save the small sum ($420) offered as a consideration for the delay; and finally, when Murdock was provided for and had received the bulk of the crop, to change his tone suddenly, and avow his intention to abandon the place entirely, though the lease had another year to run, unless the plaintiff would make a large reduction on the rent, both for the year past and the one to come. We must confess that these circumstances create a grave suspicion in our minds, that the prolongations granted, conceding that they were granted, were the result of a regularly devised plan, to which both defendants were privy, to obtain the same to the prejudice of the plaintiff and for the advantage of Murdock; and there is no fact disclosed by the record to relieve this suspicion. Admitting, however, that Murdock was not aware of, or consenting to, these prolongations, the question arises: did they have the legal effect to discharge him from liability for the debt ?

Undoubtedly the general rule declared by a textual provision of the Code is, that a surety is so discharged by a prolongation of the term of payment made without his consent. C. C. 3063.

To have such effect, however, the law contemplates that such prolongation is granted by one having the legal authority to grant it, and the consequent discharge of the debtor resulting from it.

Had the plaintiff in this case such authority ?

She sues as the administratrix of the succession of D. P. Jackson, deceased; the parties sued contracted with her in that capacity; it is admitted that the plantation leased belonged to the deceased; and the debt for the rent of the same, if due, must be owing his succession. If such was the capacity of the plaintiff, it can make no difference that she derives that capacity or obtained her appointment of administratrix of the succession of the deceased by right of being’ the widow in community. She contracted as administratrix for the lease of succession property and sues in the same capacity. Nor is there any evidence that she pretended to exercise any authority with respect to this property or the leasing of it, except in the capacity named, as contended for by defendants’ counsel. Her act in leasing' the plantation was, on her application, approved by the Probate Court, which is inconsistent with her contracting in her personal capacity.

The question presented in regard to the power or authority of an administrator to discharge a debtor to the succession administered by him, or make any agreement that would operate such discharge, is not a new question. His authority in this respect has been likened to that of a mandatary; and where the power has not been expressly conferred, the act or agreement from which such legal effect is claimed is ultra vires and void.

No express or implied power is delegated bylaw to an administrator to discharge a debtor of the succession from his obligation to pay a succession debt. He may make himself liable for it by his laches and his neglect to take the proper steps to collect it, hut he cannot by his contract or agreement release the debtor from the payment of his debt, no more than the agent without authority could discharge the debtor of his principal.

In the case of Landry, Curator, vs. Delas, 25 An. 181, the Court held:

“ An administrator exceeds his proper functions when he enters into an agreement with the debtors of an estate to extend the term of payment beyond that fixed by the original contract. The exercise of such a power by an administrator may be assimilated to acts done by agents, which do not come within the purview of their powers, and which are, therefore, regarded as not binding on their principals.” See, also, 8 N. S. 452; 26 An. 659, 343; 28 An. 275.

We know of no authority, or decisions of this Court that contravene this doctrine. The case of Chaffe vs. Lisso & Scheen, recently decided by this Court, to which we are referred, is not in point.

In that case, the authority of the syndic or other administrator to discharge a debtor to the estate by an agreement made with such debtor or other person, was not at issue. It was claimed in that case that the obligors to an attachment bond were discharged by virtue of certain legal proceedings that transpired before the syndic was appointed, and not by any act of the syndic; and the Court merely passed on the result of such proceedings, the existence and the legal effect of which were alleged by one party and admitted by the other.

For these reasons and considerations, we conclude that Murdock was not discharged from his liability to the succession of D. P. Jackson by the' agreement and acts of the plaintiff as administratrix thereof, cited and relied on.

It is argued in the brief that Murdock was also discharged by the neglect of the plaintiff to obtain a judgment against Michie, recognizing the lessor’s privilege on the property seize'd under the provisional seizure. No such issue was raised in the lower court, and we are without authority to notice it or pass upon it when made here for the first time, and that in the brief of counsel.

The amount or balance claimed by plaintiff on the rents of 1876 and 1877, at the institution of the suit, is $5280. This is a smaller amount than the obligations call for, after allowing, all the credits indorsed on, the first note, and the $420 claimed to have been paid on the second note; from which we conclude that this last named sum must have been included in the acknowledged credits. And, even including this, there would still be a larger balance owing on the two notes than that claimed in the petition. The plaintiff is, however, bound by his admission, and we must recognize the amount due, after deducting the admitted payments, as stated — $5280.

From this must be taken the aggregate of the sums allowed by us on the claims pleaded in Michie’s answer, as shown above, amounting to $625. Deducting this sura from the amount claimed, $5280, leaves a balance of $4655 owing by the defendants, for which plaintiff is entitled to a judgment with interest from the time due.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended by increasing the amount therein allowed against Wm. C. Michie as principal, and Robert Murdock as security, to four thousand six hundred and fifty-five dollars, which sum they are .condemned to pay in solido, with eight per cent interest thereon per annum from the 1st of November, 1877, till paid, and that the judgment as thus amended be affirmed, the defendants to pay costs of both courts.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 6713.
    Teutonia National Bank vs. J. M. Wagner et al.
    A document annexed, to and made part of the Petition, controls the allegations thereof, in case of variance.
    The sureties of the cashier of a bank who, in the very bond signed by them, recognized the legal existence of that corporation, are estopped from denying that the bank had such legal existence at the date of the bond.
    The sureties on such bond, though bound in solido with the principal, are several obligors inter seset if the solidarity between themselves is not expressed. They are bound by distinct and separate contracts, though such contracts are evidenced by only one act, the bond. Therefore, the discharge of one of the sureties by the common creditor does not release the other sureties.
    The sureties of a bank officer are liable, not only for the acts done by him by virtue of his office, but also for those done under color or by means of his office.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Kennard, Howe & Prentiss for Plaintiff and Appellee:
    Where a bond is given by a cashier of a bank, with sureties who are each bound for a separate amount, and the bond contains a promise on the part of the principal and sureties to pay said amounts to the President and Directors of the bank, and also recites that if the principal faithfully perform his duties as cashier, the bond is to be void, but otherwise of full force and efíect, such bond is, in legal intendment, in favor of the bank, and the bank can maintain an action upon it.
    Such a bond is an obligation to pay money, on a certain contingency; the condition is a suspensive one.
    Although each surety on such a bond is bound in solió.\o with the principal up to a certain amount, yet the obligations of the sureties towards the bank, and among themselves, are several.
    The alteration made in such a bond, by which the name of one of the sureties is canceled, does not discharge the other sureties.
    The discharge of one of the sureties on such a bond, does not affect the liability of the other sureties.
    In such a contract there is no contribution betweon the sureties. The obligation of each is as distinct as if evidenced by a separate agreement. An alteration or change in the contract of one of the sureties is not an alteration or change in the contract of the others.
    The facts of the case discussed, with a view to showing that the sureties are not discharged by any laches on the part of the bank.
    The sureties are estopped from denying any of the recitals in the bond, which they have signed.
    The sureties are responsible to the bank, not only for the amounts for which the cashier has become liable by virtue of his office, but also for the losses occasioned by him to the bank, under color of or by means of his office as cashier.

      T. Wharton Collens, E. Howard Me Caleb and E. W. Huntington for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit to enforce the liability of J. M. Wagner as cashier, and of the other defendants as sureties on his bond, given in that capacity.

The claim was originally for $7123 47, but, upon the discovery of certain credits, it was reduced to $5878 62, amount of alleged defalcations. The main defendant, Wagner, was not found and made no appearance.

The sureties, at first, pleaded by exceptions, that the petition disclosed no cause of action and that the bond was not furnished in favor of the plaintiff. Those preliminary defenses having been overruled, they pleaded the general issue; but specially, that the bond declared upon, had been altered, after signature, without their consent and that, by the acts of the plaintiff, in discharging three of their co-sureties and, in proving derelict to duty, they have been discharged from all responsibility.

After hearing, the lower court gave j udgment for the plaintiff for $4570 75 with interest and costs against five of the eight sureties, but only up to the amount for which they had respectively signed the bond.

Two of the sureties thus condemned, have appeald from the judgment so rendered; William Bogel and Ed. E. Stockmeyer.

The plaintiff has filed in this Court an answer, asking that an item of $1307 87, not allowed by the lower court, be here decreed in their favor.

The Bank has not appealed from the judgment of nonsuit, as concerns Oertling.

The exception of no cause of action was properly overruled. It is evident that, had the allegations of the petition been proved, on a confirmation of default, the judgment could not have been reversed on appeal. Eor the purpose of the exception, they had to be taken for true.

The petition does not set forth that the defendants are liable in solido to the Bank as co-debtors; but distinctly, that they are each so responsible with Wagner. In explanation, and for greater certainty, there is annexed a copy of the bond, as part of the petition. The bond controls the allegations. 27 An. 224; 18 An. 680; 7 An. 295; 6 L. 276; 14 L. 368; 1 R. 469.

The other defense was likewise properly overruled. On its face, the bond, copy of which had been attached to’ the petition, showed that it was given, in as many words, in favor of the plaintiff in the present action, and that Wagner, the principal, was then cashier elect.

That the Bank was not in being at the date of the bond, was not a defense susceptible of being set up by the defendants, who had in the very bond recognized its existence as a living corporation. 28 An. 736; 2 N. S. 672, 678; 10 An. 491; 11 Otto, 192.

The Bank had been organized and existed at the time. It was ready for business, although the authority required to commence such had not yet been received. U. S. R. S. 5133, 5138, 5144, 5168, 5169.

On the Merits.

The evidence clearly establishes the defalcations charged against Wagner.

Thejftrsí item is for the amount of Wagner’s overdraft in foreign exchange, viz: $3577 23, which the judgment of the lower court allowed. The total of florins is only 6793 85 and not 7154 25, as stated in the account. Calculated at 50 cents, the amount to be allowed, should be , $3396 92 only.

The second item, tor $128 52, is also proved.

The third item, for $865, for overdrafts on the cashier’s account, is likewise established.

The fourth item, for $1307 87, is shown to be for ten checks which Wagner drew on the Bank, without authority and in the name of David Goodman, a depositor.

The appellants do not appear to dispute the liability of Wagner for those sums, which aggregate $5698 31; but they contend that they are not liable in any manner for the same to the plaintiff for the reasons, that the bond was tampered with, without their knowledge or assent; that one of the original sureties therein, Charles Pothoff, was discharged, and another one, Henry Oertling, was substituted to him; that two other sureties, L. Stein and Louis Schwarz, were afterwards discharged, all without reserve; and that, hence they themselves have been released from all responsibility in the premises as sureties.

The whole defense rests .on the theory that the bond furnished by Wagner is a joint and solidary obligation, binding alike the principal and the sureties therein, to do the same thing.

We do not so.construe the bond. It is, on its face, a several obligation. It maybe joint and solidary, as between the principal and each surety separately, up to the amount of the latter’s liability; but it is not such between the principal and the sureties all together, for the aggregate of the sums specified by them.

There is an obligation in solido, on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them exonerates the others toward the creditor.”

“ The obligation may be in solido, although one of the debtors be obliged differently from the other, to the payment of one and the same thing.” R. C. C. 2091, 2092.

“ Where there are more than one obligor or obligee named in the contract, the obligation it may produce, may be either several or joint, or in solido, both as regards the obligor and the obligee.” R. C. C. 2077.

“ Several obligations are produced, when what is promised by one of the obligors is not promised by the others, but each one promises separately for himself to do a distinct act; such obligations, although they may be contained in the same contract, are considered as much individual and distinct as if they had been in different contracts and made at different times.” R. O. O. 2078.

“ When several persons join in the same contract, to do the same thing, it produces a joint obligation on the part of the obligors.” R. C. O. 2080.

It is not until persons who obligate themselves to the obligee, do so by using the terms in solido, or otner expressions which clearly show that they intend that each one shall be separately bound to perform the whole of the obligation, that it can be called a solidary obligation on the part of the obligors. R. C. C. 2082; 12 R. 183; 15 An. 158; 21 An. 127.

“Where several obligations are created by one act, they have no other effects than the same obligations would have had if made by separate contracts, and they are, therefore, to be governed by the rules which apply to all contracts in general.” R. C. O. 2084; 14 An. 828; 23 An. 413.

It is manifest that the bond in this ease nowhere contains the words “insólido” or others equivalent thereto, so as to make the sureties therein liable solidarity with the principal to the same thing, in its entirety, to the obligee, the plaintiff in this ease. The obligations are severable and can be severed, so as to stand each on its own bottom. ■

“An obligation in solido is not presumed, it must be expressly stipulated.” R. C. C. 3039.

“ Suretyship may be contracted for a part of the debt only, qr under more favorable conditions.” R. C. O. 3037.

The obligation of the principal was one thing, and the obligation of the sureties, among themselves, as conditional debtors, was another thing.

The principal, as such, bound himself to the Bank to the same extent as the sureties themselves agreed to be responsible, but they undertook, severally, to be liable, ivith him, only to the extent or amount which each specified in the bond as the maximum of his responsibility, regardless of the independent liability assumed by others, each binding himself alone. The sureties did not bind themselves together, jointly and severally, the one in default of the other, each one for the whole, of the entire liability of the principal. Each merely said: should the principal fail in his duties and wrong the obligee, I will repair the damage, to the extent of such an amount, which each specified. No liability, judicially liquidated against the principal, could be enforced against each of the sureties, beyond the amount for which each agreed to, and did bind himself.

The case stands just as though eight different bonds, or different papers, containing no reference the one to the other, had been furnished to the Bank.

The District Judge well observed: “ The sureties have stipulated and determined the extent of their liability, not for the full amount of the bond, nor for equal portions, but in certain determined and specified amounts, some for greater amounts than the others. No matter how extensive the defalcation in excess of the amounts for which they bound themselves, they could not be held responsible,” (i. e. for the surplus.)

We, therefore, conclude that, although the sureties have stipulated and bound themselves in the same act, they must be considered as having bound themselves each one separately by independent contracts, evidenced by distinct acts. R. C. C. 2078, 2084; 2 R. 538; 10 R. 14; 3 An. 162; 11 An. 327; 14 An. 828; 23 An. 413; 31 An. 301, 738; 12 O. St. 577; Duranton, v. 12, Arts. 358, 473; Toull. 7, 331; Larombiere, 3, p. 611.

If, then, the sureties are not bound in solido, what becomes of their defense, that the discharge of one or more of them without reserve, and that the alteration of the bond, as to Oertling, have released them from all responsibility ?

We do not propose to discuss the position assumed by the appellants in this regard. The statement of the proposition carries its refutation.

In 8 English Common Law Reports (1 Barnwell & Cresswell), p. 287-290 (Collins vs. Prosser), we find that, in a suit on a bond, whereby sureties had acknowledged themselves held and bound to the plaintiffs, in 10001. each, for which they bound, themselves and each of them for himself, for the whole and entire sum of 10001. each, subject to a condition that the principal should render a true account of all monies received by him, as treasurer of a certain county, it was held; that this was a several bond only, and that the obligees, by removing the seal of one obligor, did not render it void as to the others. See, also, 10 R. 14; 12 Ohio St. 577; 3 An. 162; R. C. C. 2078, 2084; 7 Toull, Art. 331; C. N. 1285, 1287; 11 An. 327.

The theories advanced by the defendants and the authorities quoted in support, are applicable to cases in which, each party was bound for the entirety of the same thing. Burge on Suretyship, pp. 385, 164, 407; 17 An. 118.

From that standpoint, the Bank had a right to do that which it did, and it did not thereby discharge the appellants or either of them.

Owing to the failure of the Bank to appeal from the judgment as to Oertling, who was substituted to Chs. Pothoff, we are unable to revise the ruling in that respect.

But the Bank has prayed that the judgment of the lower court be amended by allowing her the overdrafts on Goodman’s account.

The evidence satisfies us that Wagner used his official position for the purpose of those unwarranted overdrafts.

On the assumption that Goodman himself had overdrawn his account, it is clear that, as Wagner knew oí it and permitted it, he and his sureties became responsible for loss sustained by the Bank.

The sureties of an officer are liable, not only for the acts done by him by virtue of his office, but also for those done under color or by means of the office which he holds. 29 An. 82, 86; Burge on Surety-ship, p. 49.

Appellant, Bogel, signed the bond for ten thousand dollars, and appellant, Stockmeyer, bound himself therein lor five thousand dollars.

We find that the plaintiff is entitled to an amendment of the judgment by enlargement, to the extent of the Goodman overdrafts, viz: $1307 87; and that the appellants are entitled to a reduction of the item of $3577 23, to $3396 92; and that the plaintiff should, therefore, recover $5698 31, with the condition that there should be but one satisfaction.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by allowing plaintiff to recover five thousand six hundred and ninety-eight dollars and thirty-one cents ($5698 31) with legal interest from January 26th, 1874, per annum, till paid, from the appellants severally: William Bogel up to ten thousand dollars ($10,000) and no more, and Edward E. Stockmeyer up to five thousand dollars ($5000) and no more, with the stipulation that there shall be but one satisfaction, and that, thus amended, said judgment, as to appellants, be affirmed.

It is further ordered that the appellants pay costs in both courts.