State ex rel. Breazeale v. Cannon

47 La. Ann. 278

Opinions

The judgment of the District Court which was in favor of the defendant, was on first hearing in this court affirmed. A rehearing was applied for and granted. On the final hearing the opinion of the ■court was delivered by

Miller, J.

This case has been elaborately argued on the rehearing; is one of public interest as well as of great importance to the -defendant. The opinion of this court has been reviewed with an earnest desire to reach a conclusion authorized by the testimony and ■consistent with the law and the articles of the Constitution bearing ■on the subject.

The proceeding is by the District Attorney of the parish of Avoyelles to remove the sheriff from office on grounds of malfeasance, non-feasance and misconduct in office. Constitution, Arts. 196, 201. The defendant interposed exceptions to the frame of the petition, based also on the alleged absence of the requisites prescribed by the Constitution for maintaining the proceeding, and ■challenging the jurisdiction of this court to pronounce on the appeal -the judgment of removal. All these objections have received due consideration and are fully discussed in the original opinion. We thought the petition made a ease for submission to the jury, and that the appeal called for the decision of this court on the charges.

* We adhere to this view. Constitution, Arts. 196, 201.

The charges in part relate to the official books of defendant and import his failure to enter the taxes collected by him in the mode prescribed by law. The sheriffs of the country parishes are ex officio the tax collectors of the State as well as of the parishes. Constitution, Art. 118. It is of paramount importance that these taxes shall be promptly collected and faithfully paid over at stated periods. To effect this our legislation provides that books exhibiting the appropriate columns for entering State and parish taxes and licenses shall be kept by the sheriffs, in which they shall enter at the dates of the collections all taxes received. The Auditor of the State is to be furnished with a sworn statement of this book, to be compared with the accounts rendered of the tax collector. The Parish Treasurer is directed to transcribe into his duplicate book the entries in the sheriff’s cash book, and to compare these entries with the sheriff’s receipt book. The law further provides that this sheriff’s cash book, with its entries contemporaneous with the payments of the taxes, is to be open at all times to the public inspection, so that all may see the daily tax collections, and so that any omission of collections may be detected. See Act No. 85 of 1888, Sec. 86, amended by Act No. 84 of 1892. With respect to licenses the law directs that a register shall be kept of those to whom the licenses issue and the dates of payment. Act. 150 of 1890, Sec. 22. The Auditor, required to furnish the cash book to the sheriffs, includes in the columns of the book one for the entry of licenses and interest paid. It is manifest that the failure of a sheriff to observe the directions of this legislation renders nugatory the checks and guarantees intended to secure the faithful collection and accounting for the taxes. The supervision of the Auditor to be provided with the sworn statement from the cash book, showing the entries of payments made at the dates when received, would be defeated if no such book is kept, or if the entries are not made or made irregularly. The check of transcribing the entries from the sheriff’s book to that of the Parish Treasurer all entries of tax collections, is impaired or made utterly ineffective, if the sheriff does not enter the taxes on his book. The public inspection of the daily entries of the taxes paid to the sheriff is of no avail if the book does not make the exhibit required by law of the daily receipts of the taxes. Above all, this cash book to be kept by the sheriff is designed to secure accounting of the public funds in his hands. The improper retention or loss, as well as the opportunity for appropriating the public funds, are all intended to be guarded against by the explicit provisions of the statute, that every dollar of taxes that comes into the sheriff’s hands shall with the interest be entered when received in the sheriff’s cash book; transferred thence to the Parish Treasurer’s book, andthatthisbookof the Sheriff, the primary and contemporaneous record of all his collections, shall be at all times exposed to the public view. Thus the system of accounting for all the public funds of the State and parishes, except Orleans, is based on the sheriff’s record of the payments to him. If that record is not kept, the chief safeguard to ensure fidelity and punctuality in paying over the public funds is displaced. The appreciation of the necessity for the legislation under discussion is evidenced by the fact that provisions analagous to those under consideration occur in all our revenue statutes, and to make more stringent the requirement in this respect the act of 1888 was superseded by the more recent statute, which with great particularity imposes on the sheriffs this duty of making a daily record of their tax collections. Act No. 85 of 1888, Sec. 86; Act No. 84 of 1892. The plaintiff’s petition imputes to the defendant the violation of this act of 1892. The penalty provided by that act is dismissal from office. The control of this court is not derived from the legislative act or the penalty the act provides. The legislative understanding of the gravity of the breach of official duty is denoted by the deprivation of office the act directs. But without such penalty provided by the law, it is the function of this court by the terms of the Constitution to remove from office sheriffs and others for official misconduct. That function we are called on in this case to exert. Constitution, Arts. 196, 201.

The relators have brought before us the sheriff’s books purporting to show the tax and license collections. Our attention has been directed to the entry of the collection in October, November and December, 1892, of the taxes of 1891. The proper place for these entries was in the collection book of the taxes of 1891. Instead, the entries out of their natural order are found in the book of collections of the subsequent year, and in the back part of that book where no one would look for such entries. The law contemplates a continuous day to day record of the collections, not entries to one period in the cash book and then carried to another book to which reference is made and no attention would be directed. The irregularity of these entries is best illustrated by the consequence. In the unusual place near the end of a book, detached from the entries of the collections of the previous months of the year, these fall collections eluded observation. The Parish Treasurer charged with the scrutiny of the sheriff’s cash book, and with transcribing the entries in it, naturally ■confining his attention to the appropriate place where such entries should appear along with and following the other collections of the taxes of 1891, had no knoweledge of these fall collections until ■brought to his notice by the District Attorney, and were ascertained by him in the researches that led to the institution of this suit. It is plain that these entries are in striking contrast with that daily •and continuous contemporaneous record of the collection the law exacts. Eor the purposes of inspection the law proposes, it is well nigh the same as if there were no entries. We should hardly feel authorized to remove a public officer on the mere ground of failure to make particular entries, or even because they do not appear in their proper place. But the facts in connection with these entries are to be taken with the other evidence, and they all tend to the ■conclusion of the lax administration of the defendant’s office. We have given attention to this explanation that these fall collections were not inserted in the book of 1891 taxes, in order to make room in that .book for the entry of the taxes of 1892, which he designates current taxes. We are not impressed with the adequacy of the explanation, especially in view of the fact that the mode of entering the collections was followed by the delay of months in paying over the collections.

It is in proof that in December, 1892, the defendant collected from two railroad companies about one thousand nine hundred dollars of State and parish taxes of 1892. These collections were not entered except by an interlineation made in March, 1893. This large collection, like the taxes of 1891, escaped attention, with the attendant result of a deferred accounting, to be noted when we come to consider the method of settlement adopted by the defendant. We have considered in this connection the explanation in effect that these collections were overlooked in copying from the stub book into the cash book; that, discovered by defendant in checking off with the Parish Treasurer, they were then entered in the cash book and the amounts paid over with interest, and the further explanation is that defendant was then worried in mind by the trouble of his brother, and hence unfitted for attention to business. The testimony as to the discovery of the omissions shows some conflict; that offered by relator tends to show the omission was' discovered by others not defendant and was then paid over, and in relator’s brief is the suggestion, when would the omission have been corrected if not discovered by others. The proof is that after the payment of these railroad taxes the defendant made three settlements with the Parish Treasurer. It emphasizes the lack of system in keeping his accounts that in none of these settlements of December 31, January 6,10 and 16 was there any accounting for these railroad taxes, and the settlement of December 31 was the day after these large collections and the other settlements a few days later. With all the benefit defendant can derive from his explanation, at least, it remains that if he had observed the law the primary entry of these collections would have been made promptly; not in his stub book, but in the cash book; the omission would not have occurred, nor would its discovery have depended on the examination two months after, whether by the officers of the jury or by the defendant, and least of all, would the paying over of taxes collected in December, 1892, have been delayed to the discovery at the later period.

'On this same branch of the case, che failure to keep the books required by law, our attention is drawn to two payments of licenses claimed never to have- been entered, one of two hundred and forty dollars and another of one hundred dollars, both for 1892. The party who paid the two hundred and forty dollars for the license of 1892 is credited with a payment in May, 1893, with two hundred- and twenty dollars and two dollars and twenty cents interest. It is to be presumed the payment in 1893 was for the license of that year. There is no entry of the amount paid in 1892, either of the two hundred and forty dollars nor of the one hundred dollars. Another payment proved to have been made defendant is one hundred dollars on account of a license. This is conceded by defendant’s explanation not to have been entered. That explanation is payment being on account, defendant treats the amount as a deposit by the party. The answer of defendant as to the non-entry of the two amounts, two hundred and forty dollars and one hundred dollars, first discussed, is they were included in his settlements. With the explanation, still there is incontestibly collections of public funds without entries added to the other testimony of defendant’s disregard of duty.

There is still further proof of the defendant’s neglect to keep his books in the mode directed by the very explicit and peremptory terms of the statute. The attention of the police jury seems to have been directed to defendant’s accounts in 1892. Then commenced the examination of his books and calls for settlements which led to the institution of this suit. In these examinations not only were disclosed the omissions already discussed, but others of a serious character. Taxes and licenses bear interest, respectively, from 31st December and 1st March of the year they become due. This interest on the taxes is required by the statutes to be entered in the sheriff’s books along with the principal. See Act No. 85 of 1888, See. 3139; Act No. 84 of 1892; Act No. 150 of 1890, Secs. 22 and 23. One fact brought to the attention of the jury in their investigations and distinctly proved is that an examination in March, 1893, showed that the large collections of taxes in the preceding month had not at that date been entered in the book. The fact itself evinces that instead of full and accurate entries of collections contemporaneous with payments, the entries were made after, with all the hazards of forgetfulness, mistake and other causes of omission intended to be guarded against by the statutory requirement of contemporaneous registry. The absence of system and failure to observe plain legal exactions receives further illustration. There is submitted to us the registry of licenses collected by defendant in 1893. These license collections begin in the early part of the year. In this registry we find that while interest is charged on some licenses, in other and numerous instances no interest whatever is charged. This feature is made more significant from the fact that on the collections in the later months of the year 1893, on which. interest was due since the first March, there are no entries for interest, while some of the earlier < collections bear interest. It is thus made conclusive to us that in this important particular, not only were there no contemporaneous charges of interest, but none whatever. The same conclusion is forced on us with respect to the interest on the taxes collected from April to October, 1892. These collections cover a large space in defendant’s book, and with no entry of interest running on all these taxes from 31st December, 1891. .

There is yet another fact brought to our notice in connection with defendant’s books. There is an entryunder dateof April, 1893, of the State and levee taxes of 1891 of the estate of Prith, one hundred and eighty-two dolllars principal and forty-six dollars of interest. No such payment was made of that date and no interest was ever paid over to the State Treasurer. The explanation from defendant of this is that he paid the taxes to the State before any interest became due with the understanding the tax-payer should refund the amount with interest at two per cent, per month required by law on delinquent taxes. The State never received this inte'rest. With the full benefit of the explanation it remains that the books intended to be a faithful record of all receipts of public money show a charge for interest never paid to the State because the defendant claims that, though figuring on his books as received, it was not due to the State. The transaction with all the other evidence in our opinion demonstrates the marked breach of official duty we have to deal with.

The explicit and peremptory direction of the law in respect to the books of his office, the defendant has treated as if the mandate was not on the statute book. We have the proof of large collections without any entries at the time; of entries not appearing in the proper place; of taxes and licenses collected with no interest whatever charged, and as the sequence of all this, there is the incomesti-ble evidence of large amounts collected and not paid over until the omissions are discovered, although the defendant claims he perceived the omissions, and although it is in proof that he then paid over the amounts. In all aspects on this branch of the case the wisdom of the legislation requiring books to be kept by those who collect the public revenues, and that the books shall be an accurate record of all collections by entries contemporaneous with the collections, is forcibly illustrated by the utter disregard of his duty in this respect fixed on defendant by the proof in the record. Under the constitutional provisions which gave to the citizens the right to demand the removal of public officers for malfeasance and non-feasance ifi office, and which impose on the judiciary the duty enforcing that demand when made in the form prescribed by the constitution, this court has now to determine whether serious violations of official duty incontestibly established are to be deemed trivial and afford no basis for the remedy provided by the organic law for the protection of the State, the parishes and the citizens against abuses in office.

On the other branch of this case, the failure of defendant to make settlements of his collections of taxes and licenses, the proof shows defaults of the defendant more serious than those already discussed, if comparisons are to be admitted.

Obvious public policy forbids the retention of public funds by the officials charged with the collections beyond a reasonable time requisite to adjust the accounts and pay oyer the amounts. If such funds are permitted to be retained beyond such reasonable time, surely no public advantage can result, and the pecuniary benefit- of the official in whose hands are accumulated the funds of the State and parish, it will not be claimed is within the contemplation of the law. The loss of public revenues in the past, whether by accident or by defalcation, have arisen mainly from laxity in accounting by public officials. The holding on to public money indefinitely, instead of promptly paying it over, besides exposing the public funds to loss from accident, supplies the opportunity for the improper use of the funds, apt to result in their appropriation by the official, tempted to-use funds in his hands not his own. The spirit of our legislation from an early period is altogether opposed to any withholding of public-money by public officials for any period more than required to pre- ' pare the account and make payment to the treasury. Hence, the very explicit legislation that all tax collectors shall settle and pay over to the parish treasurer, in the first week of each month, all parish-taxes and licenses collected and a final settlement shall be made in the month of July of every year. .Act No. 85 of 1888, Sec. 76. The proof on- this branch of thb case brings to our notice that when the police jury were inducted, whose action led to these proceedings, the defendant had not conformed to the required settlement. From April to September, 1892, he made no settlements. The jury turned their attention to the subject and in September, 1892, the defendant paid nearly eight thousand dollars of the taxes of 1891. These taxes became exigible on the 31st December, 1891. It is quite manifest this large September payment embraced the accumulated collections of months previous. There are no settlements in May or June, or July or August or in the first week in September and July, fixed for final settlement, but passed away with no compliance. These taxes-of 1891 are those in part entered without the charges for interest exacted by law, required to be collected and entered when collected. There is to be added to this the delayed payment of other taxes of 1891 entered in the back part of the tax collection book, beginning with taxes collected in 1893. These taxes, overlooked because of the unusual place where entered, received in the fall months of 1892, were not paid over till July, 1893, though tendered by defendant, as we appreciate the testimony, in March, 1893. But the tender itself makes prominent the default.

The instances of licenses collected and not paid over have been noticed in discussing the omitted entries. We gather from the record that these licenses were included in the settlement ultimately obtained by the jury. We are not at liberty to infer, however, that as to the .amount received on account of one of the licenses any payment was made. The references in the briefs on this point are not as distinct as could be wished, but we accept the testimony and statements in the briefs that the defendant discharged all liability to-State and parish. With regard to the payment on account, we understand defendant’s position to be he refused to receive it as part payment, the law prohibiting partial payments of licenses, but that he holds it as a deposit. The explanation virtually concedes that the party did business without a license, and the State or parish is not to be benefited by a part payment, which, though prohibited,, defendant receives. These license collections, at least, concur in illustrating the failure of appreciation of the defendant of prompt settlements.

The retention of the railroad taxes by defendant, received and not entered in December, 1892, and not paid over till March, 1893, when the omission was fortunately discovered, has been discussed. With the explanation on this point already considered, there is the incon-testible fact of the failure to account for a large amount of public funds at the period when payment should have been made, and the explanation itself points to the cause of defendant’s remissness in his utter failure to observe the plain requirements of the law for the guidance of officials charged with collecting the public revenues.

We do not care to pursue further the examination of the charges-against the defendant. The views presented are sufficient to dispose of the case. There is disclosed departures from official duty of the greatest character. It is due to the defendant to state that his accounts with the State were adjusted; no complaint comes from the State. So his accounts with the parish were finally closed, and we accept the testimony that he has fully settled with the parish. This excludes the imputation that would otherwise rest on him, but there remains the violations we have discussed of statutory provisions couched in the plainest language, demanded by the public interest, and these departures from official duty, in the performance of the judicial functions, can not be overlooked, least of all sanctioned. It would be more congenial to our feelings if we could view defendant’s ultimate settlement as an extinguishment of the causes of complaint urged here. Were we to yield to our inclination, and so hold, it would be to proclaim that rigid legal requirements of public officials are not binding, if fortunately the public interest, in the end happen to escape injury.

We have given all the attention it deserves to the fact urged in defence of the sheriff, that quarterly settlements had been the rule under a resolution of 1884 of the police jury. The legislative act of 1888 was the guide for the sheriff. That statute discarded the idea that the public taxes should remain in the sheriff’s hands in aid of no public purpose, and against all considerations of public policy, for ninety days after the collections. The statute confronted him with its plain exaction of monthly settlements, and in the first week of the month. Nor can we appreciate that an official can invoke the ordinance, since nine months, in the case of his large payment in September, 1892, went by with neither monthly nor quarterly settlements.

The defendant held his office under the law and is bound by it. This court is vested with the function to enforce against public officials the requirements of the laws. The duty is unpleasant, but none the less imperative. To sustain the defences in this case would be in effect to announce that public officials may with impunity disregard their obligations, and that this court charged with the enforcement of the law may grant dispensations to such officials against the text and spirit of plain statutory enactments.

It is therefore ordered, adjudged and decreed that our former judgment be set aside, that the judgment of the lower court be avoided and annulled, and it is now adjudged and decreed that the defendant be and he is hereby removed from his office as sheriff of the parish of Avoyelles, and that defendant pay costs.

Exception, to the petition was, that it did not set out in the language of the •Constitution that the suit was instituted by the District Attorney “ on the written request and information of twenty-five citizens and tax-payers.”

It was objected to the appeal that when a cause has been tried by a jury, and the jury has given a general verdict, the lower court must give judgment pursuant to the same unless a new trial has been granted. As in this case a general verdict had been found in favor of defendant, which was virtually an acquittal, the District Court was powerless to render a judgment of conviction; that the Supreme Court could not render a judgment prohibited tothe District Court; to set aside the verdict would be to render an original judgment of conviction. Citing Thompson vs. Chapman, 7 An. 258.—Reporter.