State ex rel. Jones v. Doucet

• Decision Date: 17 May 1943
• Docket Number: 36844.
• Citation: 203 La. 743,14 So.2d 622
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. JONES, Governor, et al. v. DOUCET et al.

14 So.2d 622

203 La. 743

STATE ex rel. JONES, Governor, et al. v. DOUCET et al.

No. 36844.

Supreme Court of Louisiana

May 17, 1943

Rehearing Denied June 21, 1943.

Eugene Stanley, Atty. Gen., W. C. Perrault, Second Asst. Atty. Gen., and R. H. Lee and M. E. Culligan, Sp. Asst Attys. Gen., for appellants.

George M. Wallace and Wade O. Martin, Jr., both of Baton Rouge, and Grove Stafford and John L. Pitts, Jr., both of Alexandria for appellees.

HAMITER Justice.

D. J. Doucet former sheriff of St. Landry Parish, and his surety, the Great American Indemnity Company, are impleaded as defendants in this action which has for its purpose the recovering of $25,473.30, being money that said former official allegedly misused and otherwise misappropriated from the Sheriff's Salary Fund during his tenure of office from May 29, 1936, to May 20, 1940.

The suit was instituted in the name of the State of Louisiana, on the relation of its Governor, through the Attorney General and through the Louisiana Crime Commission, for the use and benefit of the State of Louisiana and of its governmental subdivisions as their interests may appear.

The Sheriff's Salary Fund is designated as such and created by law, and out of it the sheriff pays the expenses of operating his office. It is composed of certain fees allowed the sheriff in handling criminal and civil matters and also of commissions on various state, parish, school, levee and other taxes and on licenses collected by him.

The commissions on the licenses and taxes, as said in Section 5 of Act No. 156 of 1920, 'shall be paid into the 'Sheriff's Salary Fund' as aforesaid, but in the event there is any portion thereof remaining at the end of each year the same shall be paid over to the recipients of the original taxes upon which the same were collected, in proportion to the amount of the original commissions paid by each recipient. The proportion of all other charges remaining unconsumed shall be turned into the general fund.'

The theory underlying this action is that if the alleged irregularities had not occurred there would exist a surplus in the Sheriff's Salary Fund of St. Landry Parish to be remitted, in accordance with the quoted statutory provision, to the State of Louisiana and to its various taxing bodies of St. Landry Parish, such as the police jury and the school board, in proportion to the amount which each originally contributed. Most of this surplus, if it existed, would be refunded to the subdivisions, while only a small proportion would go to the state.

Defendants filed exceptions of no cause and no right of action under which they urge that: (1) The State of Louisiana cannot sue under the authority of Act No. 13 of 1940, known as the Crime Commission Act, because that statute is unconstitutional. (2) The interest of the State of Louisiana in the fund can be recovered only by a suit in the name of the Governor brought either by the Attorney General or the District Attorney. (3) No interest of the State of Louisiana is particularly alleged in the petition. (4) Every political subdivision of the Parish of St. Landry that levied taxes and contributed to the Sheriff's Salary Fund during the years 1936 to 1940, inclusive, is entitled to be refunded from the surplus; and the interest of each can be asserted only in a proper proceeding and in its own name.

Defendants also pleaded the prescription of two years under Revised Statutes, � 3546 (Dart's Statutes, Section 7477).

The district court sustained the exceptions of no cause and no right of action and dismissed the suit. Also it decreed that the plea of prescription filed by each defendant be maintained as to all alleged irregularities occurring over two years prior to the filing of this suit. From the judgment the State of Louisiana is prosecuting this appeal.

The statute that created the Louisiana Crime Commission (Act No. 13 of 1940) was declared unconstitutional in Stewart v. Stanley, 199 La. 146, 5 So.2d 531; therefore, the State is without right to bring suit through the Crime Commission and under the provisions of the statute creating that agency.

It is provided in Revised Statutes, � 3539 (Dart's Statutes, Section 7466) that:

'The bond may be put in suit against the sheriff and his securities, when in behalf of the State, by the Attorney General, or district attorney of the district, in the name of the Governor for the time being, for the use of the State; and in all other cases in the name, for the use, and at the request of the party injured. The bond shall not become void by a first or any other recovery, but may be put in suit and recoveries had, as often as any breach of the conditions thereof shall happen; Provided, The securities shall not be liable for more than the penalty of the bond.'

Directing attention to this statute, counsel for appellees argue that under it, in so far as the State's interest is concerned, the suit can be brought by the Attorney General or the District Attorney only in the name of the Governor, and that it does not authorize an action in the name of the State of Louisiana on the relation of the Governor as is here attempted. We find no merit in this argument. Perhaps a distinction between those two methods can be drawn, but certainly there exists no real difference. The Governor is the State's chief executive and in his official capacity he acts only for the State; hence, a suit brought in his name for the use of the State is in effect the same as one brought in the name of the State through or on the relation of the Governor. Applicable to the distinction is John Byrom's coined phrase of tweedle-dum and tweedle-dee.

It was not required of the State, for the purpose of alleging a cause of action, to particularize in the petition the interest to which it is entitled, as distinguished from that belonging to its subdivisions. The statute law fixes the interest of the State and it will be read into the petition.

The fourth contention made by defendants, through their exceptions of no cause and no right of action, is serious and more difficult of solution. Under it they insist that by reason of the above quoted provisions of Revised Statutes � 3539 (Dart's Statutes, Section 7466) and the jurisprudence of this State, suit for the recovery of the interests belonging to the Parish of St. Landry and its local taxing subdivisions, which contributed percentages of their taxes to the Sheriff's Salary Fund, can only be brought in the name, for the use and at the request of those respective entities; and they point out that such a procedure was not resorted to here.

Counsel for appellant, in interpreting the provisions of Revised Statutes,� 3539 (Dart's Statutes, Section 7466), say that 'the first portion concluding with the word "state", just preceding the semi-colon, provides a method of recovery against a sheriff and his surety by the state, not only for itself but for its political subdivisions, and that the concluding portion reading 'and in all other cases in the name, for the use, and at the request of the party injured' provides a method of vindicating the rights of any private individual, firm or corporation suffering any loss by reason of any illegal act of a sheriff.' This interpretation, in our opinion, is incorrect.

It has long been settled in our jurisprudence that as a general rule the state is without authority to institute suit on a cause of action belonging to a political subdivision that possesses the right to sue and be sued. This was held in State v. Tensas Delta Land Company, Limited, 1910, 126 La. 59, 52 So. 216, 221, wherein the state, through the Attorney General, had sought to obtain the annulment of an alleged fraudulent sale of lands made by the Tensas Levee District (Board) to the defendant, Tensas Delta Land Company. In the course of the opinion on the original hearing, it was said:

'The argument that the said board is nothing more than a mere agency or instrumentality of the state, and that therefore the state may sue in every case where the said board might sue, contains a manifest non sequitur. Every city, town, and parish of the state is a mere agency or instrumentality of the state; but on one would venture to say that the Attorney General could ignore the existence of these corporations and enforce, in the name of the state, any cause of action which any of them might have.

'The legislative control over corporations of the character of this levee board is much more complete than over municipal corporations proper and parishes--it made them, and can at any time abolish them, so long as the obligations of their contracts are not thereby impaired--but these corporations have their existence and exercise their functions by and under the Constitution and statutes of the state, and so long as these established laws remain in force it is they which must regulate the property and other rights of said corporations and their modes of action, and the disposition of their property, and their rights to sue and to be sued. * * *'

And in denying the application for a rehearing the following was stated:

'The Legislature vested the absolute title to the lands in controversy in the Board of Commissioners of the Tensas Levee District, with full power to sell the same on such terms as the board might deem proper. The Legislature also vested in said board full power to sue and be sued, and to stand in judgment, in all matters relating to their gestion and trust. The board of commissioners could have brought the present suit to annul the alleged fraudulent sale and recover the lands. * * *.

'The General Assembly has the power at any time to authorize the Attorney General to institute actions for the use and benefit of the taxpayers and peo...