State v. Gaines

• Decision Date: 01 March 1894
• Docket Number: 10,619
• Citation: 15 So. 174,46 La.Ann. 431
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. MISS LAURA GAINES ET AL

15 So. 174

46 La.Ann. 431

STATE OF LOUISIANA v. MISS LAURA GAINES ET AL

No. 10,619

Supreme Court of Louisiana

March 1, 1894

Rehearing refused.

APPEAL from the Civil District Court, Parish of Orleans. King J.

Walter H. Rogers, Attorney General, for State, Appellee.

W. S Finney and Henry C. Miller, Attorneys for New Orleans Canal and Banking Company, Defendant and Appellant.

FENNERJ. BREAUX, J., dissents.

OPINION

FENNER, J.

The State, acting through her Attorney General, brings this suit to recover from the defendant possessors fourteen State bonds, which, she alleges, were fraudulently and illegally embezzled and put in circulation by her late State Treasurer, E. A. Burke.

The bonds were held by Miss Laura Gaines, and were pledged by her to the Canal Bank, and they are both made defendants.

The State also claims from Miss Gaines a judgment for three thousand six hundred dollars, amount of interest coupons collected by her on said bonds.

The defendants answer, asserting their just title as bona fide holders of said bonds, which they assert to be valid and binding obligations of the State, and they pray for judgment rejecting the State's demand, and further decreeing that they be paid by the State in principal and interest, according to the terms of the contract.

From a judgment in favor of the State, the defendants appeal.

The issues involved are three, viz.:

1.The right of the State to oust the defendants of the possession of the instruments purporting to be bonds of the State, and to take the same into her own possession.

2.The right of the State to recover from Miss Gaines the amount of the interest coupons collected by her as having been unduly received.

3.The right of defendants to recover judgment against the State decreeing her liability for the principal and interest of said bonds to be paid according to the terms of her contract.

The third issue just mentioned is one which must be unhesitatingly decided against the defendants.

The State can not be sued before her own tribunals without her consent, and she has given no such consent.The question is not affected by the fact that the claim is a demand in reconvention set up in a suit brought by the State.State vs. Bradley,37 An. 623.

So far as the other two issues are concerned the rights of the defendants as bona fide holders of said bonds, and the liability of the State to them as such, are urged as defences to the demands of the State, and if it were necessary for us to determine these questions in order to decide the issues between the parties, it might be our duty to do so.

But we are strongly impressed with the sense of our duty to abstain from considering or determining the liability of the State as a debtor on these bonds, which the political authority of the State has not consented to submit to judicial arbitrament, unless such determination is absolutely essential in order to dispose of those issues which are validly submitted to us.Our decision thereon would be in no manner binding upon or executory against the State, and would simply operate an unwarranted intrusion of our opinion in matters which are confided to the free discretion of the political branch of the government.

We therefore felt bound carefully to examine the issues presented, in order to see if they admitted of determination on any grounds which did not involve the necessity of considering questions of such vital moment to both the State and the holders of these instruments.

We have concluded that these issues may be readily determined on grounds involving no such necessity.

So far as the right of the State to recover possession of the bonds is concerned, we must consider the nature of such instruments.They belong to the class of things known at common law as choses in action, or demands enforceable by action.With usthey are merely evidences of debt, and belong to the class of incorporeal rights.They are not, at common law, subjects of larceny, though by statutes, in this and many other States, they have been made so. 1 Bish.Cr. L., Sec. 578.

They are no doubt subject to corporeal seizure under judicial process, and are treated in many aspects like corporeal property.They may become the subjects of action for specific recovery.But, nevertheless, their essential character and value consist in their quality as evidences of debt.

The Canal Bank is undoubtedly the lawful holder and possessor of these bonds, acquired by it in good faith and for a valuable consideration.They represent, on their face, an obligation of the State of Louisiana, signed by her Governor and Treasurer and under the seal of State, all attached in accordance with law.

They are the sole evidence which the bank has of the claim which she asserts against the State.

Where is the law or the equity which would authorize the State to invoke judicial process to wrest from the hands of her apparent creditor the sole evidence of his claim, without at least submitting to the court for valid and binding determination all the rights and...