Meyer v. Parish of Plaquemines

• Decision Date: 31 December 1942
• Docket Number: 17717.
• Citation: 11 So.2d 291
• Court: Court of Appeal of Louisiana — District of US
• Parties: MEYER v. PARISH OF PLAQUEMINES.

11 So.2d 291

MEYER v. PARISH OF PLAQUEMINES.

No. 17717.

Court of Appeal of Louisiana, Orleans.

December 31, 1942

Rehearing Denied Feb. 1, 1943.

Appeal from Twenty-Fifth Judicial District Court, Parish of Plaquemines; Paul Debaillon, Judge Pro Tem.

L.H Perez, Dist. Atty., of New Orleans and Rudolph McBride, Asst Dist. Atty., of Pointe a la Hache, for appellant.

Neil A. Armstrong, Jr., and Anthony J. Manich, Jr., both of New Orleans, for appellee.

SIMON, Judge.

The plaintiff seeks to recover the sum of $1875 from the Parish of Plaquemines as being the balance due him for salary and expenses as assessor of said Parish, during the years 1933 to 1936, both inclusive. In his original petition he alleges that his salary during that period amounted to $8000, and his expenses to $8850, and that on the former he received $7500 and on the latter $7475, leaving a balance due him of $500 and $1375 respectively, a total of $1875. According to his petition, plaintiff qualified as assessor on January 1, 1933, and his term of office expired on December 31, 1936.

The Parish of Plaquemines, through the President of the Police Jury of said Parish, excepted to the plaintiff's petition on the ground that it disclosed no right or cause of action.

The District Judge concluded from the oral disclosures and argument of counsel, that the exception was one levelled at the factual insufficiency of plaintiff's demand, rather than at the cause of action therein sought to be stated, which, even upon full proof of its contents, would still not afford the relief demanded. Accordingly, considering it, in effect, as one of vagueness, the exception was overruled and plaintiff was permitted to amend and supplement his allegations within a fixed time, under penalty of dismissal of his suit.

The plaintiff thereupon filed a supplemental petition in which it is alleged that the tax rolls for the year 1936 were prepared by him and approved both by the Board of Equalization for the Parish of Plaquemines and the Louisiana Tax Commission, and duly filed with the Sheriff and Clerk of Court of said Parish, respectively; that in compliance with Section 2 of Act 84 of 1936, he submitted to the Supervisor of Public Accounts a detailed itemized statement of his office expenses, together with cancelled checks, bills, receipts, vouchers, etc., evidencing the payment of such expenditures for the year 1936, to the satisfaction of said Supervisor; that in compliance with Section 5 of said Act, he rendered to the said Supervisor sworn statements showing the total amount of taxes assessed for the account of the State, Parish, school, road and other accredited purposes, and also showing the pro-rata thereof to be appropriated and paid by each recipient as their respective share of his statutory salary and expenses, copies thereof being filed with the Parish Treasurer and the Treasurers of all other recipients for whose benefit the taxes would be collected; that in compliance with the approval of said Supervisor, the State of Louisiana paid its pro-rata of $780.12 to the defendant Parish. Plaintiff further alleges that wherein in his original petition it is alleged that office expenses of $8850 were due him during his four year occupancy of the office, that this figure should be $8500, and that the amount of $7475 allegedly received should likewise be changed to read $7,125, leaving, however, an unchanged balance of expenses claimed of $1375.

After a disposal of incidental pleas, defendant Parish again filed an exception of no right or cause of action and a plea of prescription of three years as to all claims for salary and expenses up to and including October 31, 1936. By agreement of the parties these exceptions were referred to the merits of the case.

The answer of defendant is a general denial of all allegations contained in plaintiff's original and supplemental petitions.

There was judgment in the court below in favor of the plaintiff and against the defendant Parish in the sum of $500 for the deficit in salary for the year 1936, and dismissing plaintiff's demand for office expenses alleged to have been incurred, from which judgment defendant has appealed. Plaintiff has answered the appeal and therein seeks an amendment of the judgment so as to include the office expenses claimed, or in the alternative, that the case be remanded to the lower court for further proceedings on that particular feature of his claim denied below.

The exception of no legal right of action is based on the provision of Article 119 of the Code of Practice that suits against corporations "must be brought against them under their legal titles". Defendant contends that the "Police Jury of the Parish of Plaquemines" is the governing authority of said Parish; that said Police Jury, vested with certain rights and powers in the administration of the affairs of the Parish, among which is that of suing and being sued by its corporate name, is a political corporation and against whom plaintiff must seek his relief, while on the other hand, the "Parish of Plaquemines" against whom the suit is directed, is purely a geographical denomination. We are referred to the provisions of the statute, under which the plaintiff predicates his demand, wherein it provides that the "Police Jury" and not the "Parish" shall advance the finances to pay the assessor's salary and expenses.

In the case of Police Jury of LaSalle Parish v. Police Jury of Catahoula Parish, 145 La. 1053, 83 So. 250, 253, the Supreme Court reviewed the historical development of Police Juries. From the opinion it appears that the Constitution of 1812 (Article 2, paragraph 10) referred to certain areas as "Parishes" and others as "Counties". However, since that time the term "parishes", in referring to such subdivisions, has been always used; that it was only in the Constitutions of 1879 (Art. 249) where "parishes" were declared to be bodies corporate. We find a similar provision incorporated in the Constitutions of 1898, 1913 art. 277, and 1921, art. 14, § 1. The Supreme Court further observed that as early as 1807 and 1813, "there was legislation creating bodies called 'police juries' and vesting them with authority to administer the affairs, for the most part, of the different parishes". It was also observed that though Police Juries possessed the authority to sue in certain specifically named instances, there was no general authority conferred, in express terms, to sue and be sued. The court approvingly quoted from Dillon on Municipal Corporations, (4th Ed.) Vol. 2, Page 658, Section 563, note; same volume page 787, section 661, note, saying: "Counties are, however, classified * * * as quasi corporations, or involuntary political or civil divisions, created by general laws to aid in the administration of government, and, though they are ranked low down in the scale or grade of corporate existence, they are, nevertheless, recognized as possessing certain of the privileges which pertain to corporations proper, such as that of acquiring and holding property and of appearing in Court for the protection of their rights".

The Supreme Court in the cited case thereupon drew a similarity between the powers usually exercised by counties and that vested in Police Juries as the representatives of the people. After reviewing the powers ordinarily exercised by Police Juries and commenting on the complete lack of authority, on the part of either the Parishes or the Police Juries, (save as is granted under specific instances) to sue and be sued, the Supreme Court recognized that being political corporations, either the Police Jury, for and on behalf of the Parishes, or the Parishes, in their own names, may sue or be sued, and that such a course of procedure had been sanctioned by a century of jurisprudence. The court then referred to a list of cases in which this right had been exercised either by the Parish or the Police Jury. It is significant also that the Supreme Court declared in the cited case that though the suit was between the respective Police Juries of two Parishes, it would have been simpler and more logical had the suit been brought "in the name of the parish in behalf of which the claim is made and against the Parish which is the real debtor". (Italics ours) The cited case involved a monied demand as is presented here.

In the instant case, plaintiff's demand equally involves matters affecting the affairs of the Parish of Plaquemines as well as the administration of those affairs by the Police Jury of that Parish. It is manifest that the real party in interest is the Parish of Plaquemines and redress for the vindication of named rights may be judicially sought either against the Parish in its name, as was here done, or through its acknowledged agents.

The exception of no cause of action is based upon the failure of the plaintiff to have alleged (a) the actual amounts incurred and expended by him for clerical and other expenses of his office, together with attached itemized statements showing disbursement of such expenditures, all as...