State ex rel. Burns v. Fornea

• Citation: 82 So.2d 463
• Decision Date: 30 June 1955
• Docket Number: No. 4073,4073
• Parties: STATE of Louisiana, ex rel. Jas. T. BURNS, District Attorney of the Twenty Second Judicial District, in and for the Parish of Washington, Louisiana, v. Alcus Louis FORNEA.
• Court: Court of Appeal of Louisiana (US)

Page 463

82 So.2d 463

STATE of Louisiana, ex rel. Jas. T. BURNS, District Attorney

of the Twenty Second Judicial District, in and for

the Parish of Washington, Louisiana, v. Alcus Louis FORNEA.

No. 4073.

Court of Appeal of Louisiana, First Circuit.

June 30, 1955.

Rehearing Denied Oct. 6, 1955.

Writ of Certiorari Denied Nov. 7, 1955.

James T. Burns, Dist. Atty., Covington, Bascom D. Talley, Jr., bogalusa, for

France W. Watts, Jr., Franklinton, for appellee.

ELLIS, Judge.

Alcus Louis Fornea is the duly elected member of the Police Jury from the Fifth Ward of Washington Parish, Louisiana. He was elected in 1948 and again in 1952. This suit was filed by the State of Louisiana through Jas. T. Burns, District Attorney for the 22nd Judicial District in and for the Parish of Washington, Louisiana, under Article 9, § 6 of the Constitution of Louisiana, LSA and LSA-R.S. 14:140, known as the 'Public Fraud Act.'

At the request of the defendant police juror, trial was had by jury which resulted in a verdict for the defendant, after which no motion for new trial was requested of the District Judge, and accordingly judgment was signed by the lower court in accordance with the verdict of the jury, and relator has appealed.

Counsel for defendant has filed a motion to dismiss the appeal on the ground that it was applied for 'by motion and/or petition in the District Court (Twenty-second Judicial District Court, State of Louisiana, in and for the Parish of Washington) at a term subsequent to that at which the judgment was rendered, read and signed, and that citation of appeal was neither issued or served, as will be reflected by the record, * * *'.

This case was tried and the judgment from which this appeal has been taken was read and signed in the Twenty-second Judicial District Court in open court on the 7th day of February, 1955. On March 7, 1955 appellant filed a motion in open court for a devolutive appeal and was granted an order making the appeal returnable to this court on April 18, 1955.

Counsel for defendant cites and relies upon the case of Haydel v. Major, La.App., reported in 19 So.2d 628. This case shows that the judgment therein was signed at a subsequent and different term of court from the one in which it was rendered. The judgment was signed on February 2, 1943, and on January 7, 1944, which was clearly a subsequent term of Court, an appeal was requested and granted without any prayer or order for citation.

In the present case the appeal was granted by motion in open court at the same term of court in which judgment was rendered, which did not require an order or service of citation. Under Article 7, § 43 of the Constitution, District Courts, except the Parish of Orleans, 'shall hold continuous sessions during ten months of the year.' The two vacation months in the Twenty Second Judicial District Court are July and August or August and September. It was held by the Supreme Court in Ryland v. Harve M. Wheeler Lbr. Co., 146 La. 787, 84 So. 55, that where a district court has set aside August and September for its vacation, it necessarily follows that the time from October to July constitutes a ten months continuous session required by the Constitution, so that the appeal taken in November from a judgment rendered in October was taken during the term in which judgment was rendered and it was properly taken by a motion in open court and without citation of appeal under Code of Practice Article 573. Many other cases could be cited but we deem it unnecessary.

For these reasons the motion to dismiss is hereby overruled.

Counsel for defendant filed a plea of prescription of one year and exception of no cause or right of action in the District Court, all of which were overruled, and on this appeal in his brief he states that while it is his humble opinion that the District Judge erred in overruling the plea of prescription and exception of no cause or right of action, in view of the fact that 'the case proceeded to trial on the merits and the Jury was eminently correct in rendering a verdict for the defendant, Fornea, the writer will not burden the Court with an argument of the plea of prescription and the exception of no cause or right of action * * *' The quoted statement of counsel for the defendant is not a definite abandonment of his plea of prescription and exception of no cause or right of action, and even though he did not press the plea and exception in his oral argument, we will, nevertheless, dispose of both.

Article 9, § 1 of the Louisiana Constitution provides:

'All State and district officers, whether elected or appointed, shall be liable to impeachment for high crimes and misdemeanors in office, incompetency, corruption, favoritism, extortion, or oppression in office, or for gross misconduct, or habitual drunkenness.'

Article 9, § 6, pertinent to the case under consideration, reads in part as follows:

'For any of the causes enumerated in Section 1 hereof, any officer, whether state, district, parochial, or of a ward or municipality, except the Governor, Lieutenant-Governor, and judges of the courts of record, may be removed by judgment of the district court of his domicile. The Attorney General, or district attorney may, in his discretion, institute such suit, and shall do so (except when the suit is to be brought against himself) on the written request, specifying the charges, of twenty-five citizens and taxpayers, or of the governor, in the case of state, district, parochial or municipal officers, and of ten resident citizens and taxpayers in the case of ward officers. * * *'

Another basis of the present suit is found in LSA-R.S. 14:140 which is as follows:

'Public contract fraud is committed:

'(1) When any public officer or public employee shall use his power or position as such officer or employee to secure any expenditure of public funds to himself, or to any partnership of which he is a member, or to any corporation of which he is an officer, stockholder or director; or

'(2) When any member of any public board, body, or commission charged with the custody, control or expenditure of any public funds votes for or uses his influence to secure any expenditure of such public funds to himself, or to any partnership of which he is a member or to any corporation of which he is an officer, director, or stockholder.

'The fact that an expenditure has been made to any party named in this article, or to any partnership of which he is a member, or to any corporation of which he is an officer, stockholder or director, shall be presumptive evidence that such person has used his power, position or influence to secure such expenditure.

'Whoever commits the crime of public contract fraud shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than two years, or both.'

Under the head of 'General Comment' following LSA-R.S. 14:140 we find the following:

'The article limits the crime of 'public contract fraud' to cases in which the officer does some affirmative act (such as voting or using his influence) in order to secure the adoption of the contract in which he has an interest. The affirmative act or influencing by the officer is the gravamen of the offense. Any attempt to further define the offense in terms of the 'extent' of interest of the offender did not appear practicable.

"Any expenditure of public funds':

'The words 'any expenditure of public funds' are used in the section to mean any spending of public money. This broad terminology was used because Chief Justice O'Niell in his concurring opinion in State v. Abernathy, supra [194 La. 559, 194 So. 19], held that the words 'contract for the performance of work or the furnishing of labor or materials,' as used in the former statute, had reference only to the construction of some public work or public building and the furnishing of building materials therefor.

"Presumptive' evidence of influence:

'The third paragraph was added upon recommendation of the council. It was felt that, although the mere existence of an interest should not be per se criminal, in such cases the official should be required to explain the transaction and show that he did not use his influence to secure the expenditure to himself or to his firm.'

Relator makes the following charges in his petition:

'III. Your petitioner further shows, that based upon information furnished him, that the defendant, Alcus Louis Fornea has, during the entire time that he has held the office of Police Juror of the Fifth Ward of Washington Parish, Louisiana, all during his present term which began in the month of June, 1952, and particularly on the dates in the manner hereinafter set forth, been guilty of violating Louisiana Revised Statutes 14:140, a misdemeanor under the laws of this State, in that, he has persistently, repeatedly and continously, used his power and position as Police Juror of the Fifth Ward of Washington Parish, Louisiana, to secure public funds belonging to the Police Jury of Washington Parish, Louisiana, and/or Washington Parish, Louisiana, for himself or for partnerships of which he was and is a member.

'IV. That Fornea Bros. is a commercial partnership, of which defendant, Alcus Louis Fornea is an active and participating partner.

'V. That Fornea Sand and Gravel Company is a commercial partnership of which defendant, Alcus Louis Fornea is likewise an active and participating partner.

'VI. That Fornea Nash Motors is entirely or principally owned by defendant, Alcus Louis Fornea and his wife, and they alone have power and authority to sign checks for the withdrawal of funds deposited to the account of said Fornea Nash Motors in Angie Branch of the Washington Bank and Trust Company.

'VII. That the Washington Parish Police Jury operates and functions under a system commonly referred to as 'the Ward system', by and under which each Police Juror has sole, complete and final authority to make purchases of materials to be...