Sutton v. Buie

• Decision Date: 05 December 1914
• Docket Number: 20954
• Citation: 136 La. 234,66 So. 956
• Court: Louisiana Supreme Court
• Parties: SUTTON v. BUIE et al

66 So. 956

136 La. 234

SUTTON v. BUIE et al

No. 20954

Supreme Court of Louisiana

December 5, 1914

Walter Elder, of Monroe, and Gilbert L. Dupre, of Opelousas, for appellant.

R. G Pleasant, Atty. Gen. (Daniel Wendling, of New Orleans, of counsel), for appellees.

O'NIELL J., concurs in the decree.

OPINION

PROVOSTY, J.

By Act No. 145, p. 259, andAct No. 297, p. 607, of 1914, the Legislature created a commission 'to investigate the past and present conduct and management of the affairs of the government,' and provided for the payment of the per diem of the members of this commission and of its other expenses.

The object of the present suit is to enjoin this commission from doing its said work, and to enjoin the state auditor and the state treasurer from paying the said per diem and other expenses out of the state treasury, on the ground that the said acts are unconstitutional.

Plaintiff brings the suit distinctly and solely in his quality of a citizen and taxpayer.

It is well settled that a citizen and taxpayer of a municipality has a standing, as such, to enjoin the making of an illegal disposition of the corporate funds.Bryant v. Logan,56 W.Va. 141, 49 S.E. 21, 3 Ann. Cas. 1013.

Whether this doctrine applies to state officers or to state funds in the state treasury has been considered but twice, so far as we have been able to ascertain.In the case of Jones v. Reed,3 Wash. 63, 27 P. 1069, the Supreme Court of Washington held that the doctrine does not apply.Four of the justices concurred, and one dissented.In the case of Butler v. Ellerbe,44 S.C. 283, 22 S.E. 437, the Supreme Court of South Carolina held that the doctrine does apply.Two of the justices concurred, and one dissented.Such a suit was entertained by the latter court in Evans v. Tillman,38 S.C. 238, 17 S.E. 49;Robertson v. Tillman,39 S.C. 298, 17 S.E. 678, but without the point here in question having been raised or considered.

Several courts have been unwilling to adopt this doctrine even in the case of a municipal corporation.As applied to a municipal corporation, it is founded in part upon the corporate relation supposed to exist, or in reality existing, between the inhabitants of the municipality and the municipality.The inhabitants are likened to the shareholders of a private corporation, and the municipality is likened to their trustee.SeeDillon, Mun. Corp.(3d Ed.) § 914 (731).

This foundation for the doctrine, needless to say, does not exist in the case of a suit involving state affairs.By no possibility can the state, in her relations with her citizens, be likened to a private corporation.Between the state and a private corporation there is in that connection no analogy whatever.

And even apart from this, it is going very far already to allow mere private persons to invoke the aid of the judiciary...