Lafayette Fire Insurance v. Remmers

29 La. Ann. 419

Opinions

The opinion of the court was delivered by

Egan, J.

This suit is to enforce via ordinaria a mortgage and for personal judgment against the defendant, a resident of the Sixth Municipal District of New Orleans, where also is situated the mortgaged property. The defendant excepts to the jurisdiction of the Fifth District Court. It is urged per contra that he is subject to that jurisdiction both by reason of his domicile and the property mortgaged being situated in the parish of Orleans. The Sixth Municipal District is part of that territory, formerly belonging to the parish of Jefferson, which was annexed to and made part of the parish of Orleans by act No. 71 of the Legislature, approved March 23,1874, which specially provides that the territory so annexed “ shall bo and remain and constitute a part of the Second Judicial District of the State,” of which tlie parish of Jefferson was a part at the time. Our predecessors more than once held act No. 71 to be constitutional, and we are not prepared to depart from their conclusions, and there has been no subsequent inconsistent legislation. So l'ate as November last, in the case of Harrison vs. Carondelet-Streot Railroad Company, Collins, Garnishee, Opinion Book 45, p. 584, they held that the garnishee, under judgment and fieri facias, who resided in Carrollton, was within the limits of the Second Judicial District of the State, and could not be called to answer before the Fifth District Court of New Orleans.

The present case forms no exception, as both the mortgaged property and the domicile of the defendant are within the jurisdiction of the Second Judicial District Court. See O. P. 163. There may be difficulties, and serious ones, in the way of carrying into effect all the details of the act referred to, but while these may well serve as a warning against legislation of this class when it can be avoided, we are not called upon in the present ease to pass upon these questions, but only to announce our opinion that the reservation of jurisdiction over the territory in question in the Second Judicial District Court is constitutional.

It is said that many and grave objections attach to legislation which divides parishes in the formation of judicial districts. This is, doubtless, true, but whether so or not, this was not done by the act in question, which only retained the judicial district as before. It might have been well had the Legislature thought proper to limit the duration of this provision to the expiration of the term of the then presiding judge, and thereafter subjected the territory annexed to the same jurisdiction as other parts of the parish of Orleans. They did not, however, do so, and we can not supply such provision to the act which, had it not reserved jurisdiction, might have been liable to much more serious objection.

The constitution empowers and directs the Legislature to divide the State into judicial districts, which shall remain unchanged for four years. It also provides, that “ one judge,learned in the law, shall be elected for each district by the qualified electors thereof;” that “the judges of the district courts shall hold their offices for the term of four years, and that all officers shall continue to discharge the duties of their offices until their successors shall have been inducted into office, except in cases of impeachment or suspension.” All civil officers are liable to be impeached or addressed out of office. By article 158 of the ordinance adopted with and to carry the constitution into effect, the terms of all officers chosen at the first election under it were to date from the first Monday of November, 1868, so that at the date of the act No. 71, annexing part of the Second Judicial District to the parish of Orleans, the term of office of the judge of that district had not expired, and had the Legislature not made the reservation of jurisdiction in question, the act might have been liable to serious constitutional difficulties, both on this account and by reason of the subjection of the electors in the annexed district to the jurisdiction of a judge not elected by them, and their being taken from the jurisdiction of the judge who had been elected by them.

In the case of the Commonwealth vs. Gamble, 62 Penn. Rep. pp. 352, 353, under a provision of the constitution of that State, in effect and almost in language similar to ours, that “ the judges of the common pleas and other courts established by law, shall be elected by the electors of the respective districts of such courts,” the court says: “ It is obvious that this secures to the electors of every judicial district the right to choose their judges; and it is equally certain that if after an election the Legislature may transfer and make the district part of another district, when the inhabitants have had no participation, or chance of participation, in the election of a judge thus assigned to preside over them, that such an act would utterly ignore the provision of the consti tution which provides for the election of judges by the elector,í of the respective districts.” And again: “ If this may be done in this instance, it may be repeated.” And so the territory and people might be transferred from time to time indefinitely, without ever exercising the right of participating in the election of a judge at all, “ and all such legislation must be utterly void if the constitutional provision for the election of judges be of the slightest consequence.”

The constitution of Illinois provided, “ that the State shall be divided into nine judicial districts, in each of which one circuit judge shall be elected by the qualified voters thereof, who shall hold his office for the term of six years, and until his successor shall be commissioned and qualified; provided, the General Assembly may increase the number of circuits to meet the future exigencies of the State,” and without any such provision as is contained in the constitution of Louisiana, that the districts, when created, “ shall remain unchanged for four years,” or for any other time. Ballou had been elected judge of one of the circuits of Illinois, and was commissioned and qualified as such on the thirty-first of March, 1857; subsequently an act of the General Assembly, approved on the eleventh of February, 1859, was passed, repealing the act creating the district of which Ballou was judge, and establishing in its stead the twenty-third j udicial circuit. Under this latter act another judge, Bangs, was elected and commissioned and proceeded to act, and the court says (23 Ill. p. 550): “The question is, can the Legislature expel a circuit judge from his office by creating a new district and taking from him the territory which constituted his district ? The bare reading of the constitution must convince any one that it intended to prohibit such a proceeding. It was the intention of that instrument to place the judges entirely above and beyond legislative control or interference, except by impeachment or address, as provided for in the twelfth section of the fifth article. It is the constitution which creates the office of circuit judge, and not the Legislature.” Again, in the same case, the court says: “ It is unnecessary now to say whether the Legislature may, under the constitution, reduce the number of judicial districts by abolishing one and attaching its territory to others. If it may, then, no doubt, the office toould cease upon the expiration of the term of the judge of such district, but till the expiration of his term if he conduct himself properly and does not become disqualified, the constitution has not provided, nor has it authorised any mode of expelling him from the office which is created by the constitution, and which he holds under the constitution.” In other words, such reduction of the number of districts and attaching the territory of one to others, could only take place or go into effect at the close of the term of the judge of the district abolished. A fortiori, then, would this seem to be true under the constitution of Louisiana, which not only fixes the term of office of the judge at four years, but provides that the districts shall remain unchanged for four years. These provisions should be read together and interpreted in harmony.

In 1 Cow. 564, it was held the justices of the peace held their offices for four years, and were not liable to removal béfore the end of that term, and that though county officers, and limited in jurisdiction to their counties, and in case they are cut off into a new county, which may be done, they are not thereby removed from office, but must be justices of the new county, and that an act of the Legislature providing for the continuance in office of justices residing in towns taken from Ontario and Seneca, now constituting the county of Wayne, is constitutional, and shall stand and be enforced.

In 6 Cow. 646, the same doctrine is reaffirmed, and while the power to create new counties is recognized, it is held to be subordinate to the provision fixing the term of office of justices of the peace at four years, unless removed in the manner provided by the constitution. The court says: “ It was the intention of the framers of the constitution to make this important class of judicial officers entirely independent during the period for which they were chosen. And it would be strange, indeed, if the power of removing them from office-at pleasure should be found to belong to the Legislature as incident to their acknowledged power of dividing old and erecting new counties (for which read 1 districts’), and the power of the Legislature to erect new counties must be exercised in subordination to the imperative provision of the constitution that justices .of the peace shall hold their offices for four years, unless removed for misconduct.” What can not be done directly can not be done indirectly by the exercise of the power to create now counties. 9 Cow. 640, reaffirms the principles of the two former cases in 1 and 6 Cow.

These decisions are entitled to all the more consideration because coming from New York, a pioneer State in introducing the system of elective judiciary, and from judges whose learning and ability have secured for their decisions respectful attention and authority wherever they are read. Did time serve we might show that the same or similar views have been announced by the courts of other States and by other tribunals of the highest authority. In our own State we are not unaware that in the abnormal, and, we might almost say, revolutionary condition which has prevailed for several years, there has been much loose and improvident legislation affecting these questions which is liable to serious objection, and has been fraught with great inconvenience. While we do not propose to press our inquiries or decision beyond what we deem appropriate to the occasion and the case at bar, we can' not avoid expressing the hope that those bad precedents, the outgrowth of disjointed times, may not be followed in future.

It has often been held here as elsewhere, and is the recognized doctrine of the law in Louisiana, that what can not be done directly can not be done indirectly. In the case of Downes vs. Towne, 21 An. 490, the court held that “ the Legislature had no power to legislate a judge or constitutional officer out of office, or to diminish or increase the term of •office as fixed in the constitution.” In the case of the State ex rel. Robinson vs. Dranguet, 23 An. 784, the court says that “ time and reflection have only strengthened the conviction expressed in Downes vs. Towne.” The court decided the case of the State ex rel. Collens vs. Clinton, Auditor, 26 An. 406, under the special provisions of the constitution for the parish of Orleans, and so expressly stated, and the court was divided. Without being called upon to give our assent to that decision, it is enough to say that it does not therefore and was not intended to vary the rule announced in the two former cases of Downs and Robinson just quoted. We have been referred to other cases than the one quoted by us, which, however, is the most recent decided by the late court where the effect of act seventy-one of 1874 was considered. Only one of them, the State vs. Daniel, can be considered as militating in any degree against the effect of the reservation of jurisdiction in the Second Judicial District. It was peculiar and exceptional, and related entirely to the composition of the juries; but, at all events, so far as in conflict with the views hereinbefore expressed, may be considered as overruled by the later case of Harrison, Collens, garnishee, before quoted, and must yield to the weight of authority.

It must be understood that we are not questioning the right and power of the Legislature to create new parishes and to abolish old ones, for though more or less difficulty attends the exercise of such power, it has always existed and been exercised in this as well as the other States of the Union. We are simply, showing why it was both constitutional and proper for the Legislature while annexing part of the parish of Jefferson to the parish of Orleans to reserve and retain the jurisdiction of the Second Judicial District Court to which it belonged over the territory so annexed. Had it been the pleasure of the Legislature, we have no doubt they might have made that reservation last only during the term of the then judge of that district, and such seems to have been the practice formerly in legislation of this character. This, however, was not done, and what was done was constitutional, and must be so held and decreed by us.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed; that the exception of the defendant to the jurisdiction of the Eifth District Court of the parish of Orleans be sustained and the suit dismissed, plaintiffs paying costs of both courts.

Since rendering the decree in this ease it has come to our knowledge that the court was in error of fact in considering the residence of the defendant and the situs of the mortgaged property to be within the territory annexed to the parish of Orleans by act seventy-one of 1874. The court of its own motion ordered a rehearing of this cause that the judgment may conform to the facts while adhering to the principles announced in the opinion accompanying the former decree. Both the residence and mortgaged property of defendant are in the Sixth Municipal District of New Orleans, which was formerly the city of Jefferson, and was annexed to and made part of the parish of Orleans by act No. 7 called session of 1870, instead of act No. 71 of 1874. We have already announced our opinion that it is competent for the Legislature to change the boundaries of parishes (though not of judicial districts) at any time. It therefore resulted from the principles of the opinion heretofore read in this case that the Sixth Municipal District being part of the parish of Orleans had already become subject to the jurisdiction of the district .courts of New Orleans prior to act forty-five of 1876, and that the attempt at that time to make it part of the Second Judicial District was in direct violation of the constitution.

The practical and legal difficulties in the way of dividing a parish in the formation of a judicial district forbid our sanctioning.such legislation. They have been well remarked upon by the judge a quo, and become more apparent in this instance in view of the provisions of the second and third sections of this act which provides for the election by part of the voters of the parish of Orleans — those of the Sixth and Seventh Municipal Districts — of a clerk whose election by the qualified electors of the whole parish is provided for by the eighty-third article of the constitution. The anomaly of having the sheriff, who is also a parish officer, act as the executive officer of a court having jurisdiction outside of its limits, and the difficulty in the composition of juries, have been sufficiently illustrated in the case of the State vs. Daniel, Opinion Book 44, p. 649. The exception of the defendant to the jurisdiction of the Fifth District Court of the parish of Orleans was properly overruled.

On the merits, we think the evidence sustains the judgment of the court below, which is therefore affirmed with costs of both courts.