State ex rel. Attorney General v. Lazarus

• Decision Date: 07 February 1887
• Docket Number: 9846
• Citation: 39 La.Ann. 142,1 So. 361
• Parties: THE STATE OF LOUISIANA EX REL. THE ATTORNEY GENERAL v. HENRY L. LAZARUS, JUDGE OF CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, DIVISION "E&quot
• Court: Louisiana Supreme Court

1 So. 361

39 La.Ann. 142

THE STATE OF LOUISIANA EX REL. THE ATTORNEY GENERAL v. HENRY L. LAZARUS, JUDGE OF CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, DIVISION "E"

No. 9846

Supreme Court of Louisiana

February 7, 1887

M. J Cunningham, Attorney General, Thomas J. Semmes, B. R. Forman and F. C. Zacharie, for the Relator.

Bayne &amp Denegre, Wm. F. & D. C. Mellen, Gus. A. Breaux, W. S Benedict, Sam. P. Blanc, Max Dinkelspiel, Geo. H. Braughn, E M. Hudson, Jonas & Nixon, and Farrar & Kruttschnitt, for the Respondent.

POCHE, J. BERMUDEZ, C.J. and FENNER, J., concur. WATKINS, J., dissents.

OPINION

POCHE, J.

This proceeding, brought for the removal of the respondent from the office which he now holds, is predicated on two articles of the State Constitution, which read as follows:

Art. 196. "The Governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer, Attorney General, Superintendent of Public Education, and the judges of all the courts of record in this State, shall be liable to impeachment for high crimes and misdemeanors, for nonfeasance or malfeasance in office, for incompetency, for corruption, favoritism, extortion or oppression in office, or for gross misconduct or habitual drunkenness."

Art. 200. "For any of the causes specified in Article 196, judges of the courts of appeal, of the district courts throughout the State, and of the city courts of the parish of Orleans, may be removed from office by judgment of the Supreme Court of this State, in a suit instituted by the Attorney General or a district attorney in the name of the State, on his relation. The Supreme Court is hereby vested with original jurisdiction to try such causes; and it is hereby made the duty of the Attorney General, or of any district attorney, to institute such suit on the written request and information of fifty citizens and taxpayers residing within the territorial limits of the district or circuit over which the judge, against whom the suit is brought, exercises the functions of his office. Such suits shall be tried, after citation and ten days' delay for answering, in preference to all other suits, and wherever the court may be sitting; but the pendency of such suit shall not operate a suspension from office." * * *

The charges against this respondent are: nonfeasance and malfeasance, favoritism and oppression in office, gross misconduct and incompetency, contained and detailed in eight specifications.

1st. The first specification is substantially as follows: That the defendant, without any color of law or right, and in violation of his duty as judge, illegally obtained, on the 3d of March, 1882, possession of the sum of $ 291 54, of a fund belonging to the succession of Nicholas Quiazzaro, and that he has never accounted for said sum to the heirs, nor to any heir or tutor of the heirs or other representative of the succession.

It is averred that said sum was the balance of a fund belonging to said succession, and placed, under orders of the court, in the custody of Ben Onorato, auctioneer, who had sold the property whence the fund proceeded; and that it was drawn from the custody of said B. Onorato by means of an order of court issued by the defendant, and by him entrusted for execution to one Charles E. Sel, who was instructed to, and did, bring and deliver to the defendant the aforesaid sum, being the balance of the fund hereinabove described.

In his answer to this specification the defendant gives a detailed history of the proceedings through which his court obtained control of the funds belonging to the succession of Nicholas Quiazzaro.

It appears from his statement and from evidence in the record that Quiazzaro died in September, 1868, leaving a considerable estate, which, after administration, went into the hands of his surviving widow, as community property, belonging to herself for one-half, and the other half in equal shares to her three minor children, Ernestine, Gilbert and Arsene Adelaide Quiazzaro, the latter having been born a few months after the death of the father. The administrator's account was presented in 1870, and was accepted by the widow in an authentic act, on September 14, 1870. It showed clear assets amounting to the sum of $ 22,649 97.

On the judicial demand of two of her children, who had then become of age, the widow Quiazzaro, who had in the meantime contracted a second marriage, presented to the court on the 28th of May, 1880, an account of her tutorship, which showed her indebtedness to her children to be $ 3651 11 to each, and which was homologated.

At the organization of the present Civil District Court, the record of the succession of Nicholas Quiazzaro was allotted to the division to which the defendant had been appointed. And shortly thereafter, the widow of Quiazzaro, who had been abandoned by her second husband, presented a petition to the court for the purpose of being judicially authorized to sell, free of the minor Arsene Quiazzaro's mortgage, two pieces of immovable property which she owned in this city, and which she had purchased in the year 1869, at the aggregate price of $ 10,000.

Considering the amount of taxes due on the property, its dilapidated condition and its greatly depreciated value, the family meeting recommended and the court ordered a sale of the property. No adjudication having been made at the first offering, the application for a sale was renewed, and after considering the recommendations of a second family meeting, and a report made to him by Joseph Garidel, whom he had appointed as an expert to ascertain the amount of taxes due by, and exigible against, the property, the judge rendered the following decree of date of April 5, 1881:

"It is ordered, adjudged and decreed that the proces verbal of the 12th of February, 1881, be homologated and approved, and the recorder of mortgages directed to erase and cancel the general mortgage in favor of Arsene Adelaide Quiazzaro, in so far as the same affects or operates upon the property described in the petition and proces verbal of the date aforesaid.

It is further ordered, adjudged and decreed that the property described as aforesaid be sold for cash, by Ben Onorato, auctioneer, to the highest bidder, after usual advertisements prescribed by law.

It is further adjudged and decreed that a proces verbal of the sale be filed in court, and the price realized from said sale be deposited in the judicial depository, there to await the order of the court for the payment of taxes and charges, upon the court's approval.

It is further ordered, adjudged and decreed that Henry Bier be authorized to settle the taxes due on said property; first filing a statement at what rates said taxes can be settled, and subject to the court's approval.

It is further ordered, adjudged and decreed that any surplus remaining from the amount realized from said sale, after payment of the taxes, charges and costs due by said property, up to the amount of the general mortgage in favor of Arsene A. Quiazzaro, be invested in State registered bonds, under Act of 1857 and Article 348 of the Civil Code

And it is further ordered that a fee of fifty dollars be taxed in favor of Jos. Garidel, as costs."

In obedience to that order the two pieces of property were sold, and realized together the sum of $ 2025, of which $ 205 remained in the hands of Onorato, and were subsequently disbursed by him under orders of the court, and the balance, $ 1820, was deposited in the Branch Depositary of the State National Bank, which had previously been selected as the judicial depository of the Civil District Court.

From the books of the bank it appears that the account was opened and was kept under the following title and style: "Ben Onorato, administrator succession Nicholas Quiazzaro, No. 824 Civil District Court, Division E, subject to order of court."

The deposit was made on June 17, 1881, from which date to the 10th of February, 1882, numerous orders were rendered by the court directing the disbursement of the fund for various purposes; the bank paying out on Onorato's check, accompanied by the order of the court, calling for an amount corresponding with that of the check.

The orders included between these two dates may be classified as follows:

For all State and city taxes due on the property

$ 966 85

For costs incurred for the sale, including the auctioneers'

commission, advertisements, two family meetings,

attorneys' fees, court costs, stamps, express and

appraisers, etc.

469 35

For Garidel's fees as expert, and fees of other experts

150 00

Amounting together to

$ 1586 20

And leaving a balance out of the fund of

438 80

Now, the answer avers that subsequently additional payments of taxes and costs were made, and the minutes of the court and the books of the bank show that an order for the disbursement of $ 147 26, purporting to be for taxes still unpaid, was made on the 10th of February, 1882, which left to the credit of the fund $ 291 54.It is then averred in the answer that on the 2d of March, 1882, the defendant was reminded by his minute clerk, F. A. Luminais, since deceased, of the existence of that balance, which he estimated at about $ 200, and which, he suggested, should be invested in bonds, in compliance with the previous order of the court.Whereupon, the following morning the defendant made arrangements with a friend of his, Henry Bier, a broker in bonds, for the purchase of bonds, without charging any commission therefor.

On the same day, the 3d of March, 1882, he issued the following order:

"More than six months having elapsed since the sale of the property, in the above succession, and no opposition to the distribution of the same having been made, and no one claiming any interest in the proceeds...