State v. Grandjean

• Decision Date: 17 April 1899
• Docket Number: 13,132
• Citation: 51 La.Ann. 1099,25 So. 940
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. GEORGE H. GRANDJEAN

25 So. 940

51 La.Ann. 1099

STATE OF LOUISIANA v. GEORGE H. GRANDJEAN

No. 13,132

Supreme Court of Louisiana

April 17, 1899

Argued April 8, 1899

Rehearing Refused May 15, 1899.

ON APPEAL from the Civil District Court, for the Parish of Orleans. Ellis, J.

M. J Cunninghanm, Attorney General, (Frank D. Chretien and E Howard McCaleb, of counsel,) for Plaintiff and Appellant.

James J. McLoughlin, Assistant City Attorney, and Samuel L Gilmore, City Attorney, for Defendant, Appellee.

OPINION

MONROE, J.

The office of Recorder of the Second District of New Orleans became vacant, in December, 1898, by the death of Henry Bezou, the incumbent; and, in January, 1899, the City Council of New Orleans elected the defendant to fill the vacancy. The State now brings suit, through the Attorney General, and alleges that the action of the Council in the premises was ultra vires, unconstitutional and null, and that the occupation of said office by said Grandjean is an unlawful intrusion and usurpation, and that he should be excluded and said office declared vacant, to be filled, under Article 157 of the Constitution, by appointment by the Governor.

Defendant excepted that the court was without jurisdiction, and that the petition disclosed no cause of action, and, answering, avers that he was legally elected and is entitled to hold the office in question and discharge the duties thereof.

1. The exception to jurisdiction is based upon the proposition, that the Constitution of 1898 conferred on the Civil District Court no power to determine the issues presented.

Article 133 reads: "The Civil District Court shall have * * * exclusive jurisdiction in suits * * * involving title * * * to office or other public position, or civil or political rights; and in all other cases except as hereinafter provided," etc. No sufficient reason is suggested why this comprehensive grant of jurisdiction should not be considered sufficient for the purposes of the instant case, nor is it suggested that any other court would have jurisdiction in the premises.

2. The exception of "no cause of action" is based, as appears from the argument of counsel, upon the proposition that, because the Governor has made no appointment, and no one is claiming the office, save the defendant, the Attorney General has no right to bring the suit.

The suit is brought under Act 156 of 1868, known as "The Intrusion Act," R.S., 2593, et seq., which, as far as it is necessary to quote it, reads:

* * * That an action by petition may be brought before the proper District Court, or parish court, by the District Attorney, or District Attorney pro tempore, and, for the parish of Orleans, by the Attorney General, or any other person interested, in the name of the State, upon his own information or upon the information of any private party, against the party or parties offending, in the following cases:

First -- "When any person shall usurp, intrude into, or unlawfully hold or exercise any public office or franchise within this State; * * * Sec. 4, provides: That when an action shall be brought by virtue of * * * this act by the * * * Attorney General * * * * on the relation or information of any person interested, the name of such person shall be joined with the State as plaintiff."

And there are other provisions as to the judgment which may be rendered. The language conferring the authority upon the Attorney General, however, to bring the suit, is specific to the effect that it may be brought by him "or any other person interested," and all the other provisions of the statute harmonize with the idea thus conveyed, that the suit may be brought by the Attorney General alone in cases where there is no "other person interested;" though when it is brought by him upon the information of a person interested, the name of such person must be joined with that of the State.

The decision in the case of Guillotte vs. Poincy, 41st Ann., 333, to which we are referred, has no bearing upon the question at issue. In that case it was claimed that Guillotte, who was in possession of the office and who had proceeded by way of injunction to quiet his title, should have proceeded under the Intrusion Act to oust the plaintiff, who was not in possession. And the court simply held that in a proceeding under that act, between a party claiming and a party in possession, the defendant must necessarily be the officer de facto.

The defense on the merits presents the single question, does the office of recorder fall within the meaning of Article 157 of the Constitution? That article reads as follows, to-wit:

"Art. 157. Vacancies occurring from any cause in the judicial offices of the parish of Orleans or city of New Orleans shall be filled by appointment by the Governor, with the advice and consent of the Senate, for the unexpired term."

One of the propositions of the defense is that this article is controlled by Article 319, which reads:

"Art. 319. The electors of the city of New Orleans and of any political corporation which may be established within the territory now, or which may hereafter be, embraced within the corporate limits of said city, shall have the right to choose the public officers, who shall be charged with the exercise of the police power, and with the administration of the affairs of said corporation in whole or in part."

Conceding (arguendo) that the recorder is a city officer, the proposition of defendant's counsel would have greater force if Article 157 referred only to "the judicial officers of the parish of Orleans"; but, it will be observed, that the article in question also provides that the Governor shall fill, by appointment, vacancies in "the judicial offices of the * * * city of New Orleans," from which it follows that, if the office of recorder is a judicial office, whether of the parish or city, and it is held, under Article 319, that a vacancy in such office may be filled otherwise than by appointment by the Governor, Article 157 is stricken with nullity; although that article could have been inserted in the Constitution for no other purpose than to provide for the filling of vacancies in judicial offices in the parish of Orleans or city of New Orleans, since it deals with and mentions nothing else, whilst Article 319 does not deal with or mention vacancies at all.

The most elementary rule of construction requires that effect shall, if possible, be given to all the provisions of a law and that different provisions upon the same subject matter shall be construed...