State ex rel. Sylvester v. Pitre

209 So. 2d 764, 1968 La. App. LEXIS 4983
CourtLouisiana Court of Appeal
DecidedMay 3, 1968
DocketNo. 2237
StatusPublished
Cited by4 cases

This text of 209 So. 2d 764 (State ex rel. Sylvester v. Pitre) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Sylvester v. Pitre, 209 So. 2d 764, 1968 La. App. LEXIS 4983 (La. Ct. App. 1968).

Opinion

HOOD, Judge.

This is a mandamus suit instituted by-six citizens and taxpayers of Evangeline Parish against Elin Pitre, Sheriff of that parish, seeking to compel the defendant to file certain annual reports required by LSA-R.S. 42:283. After this suit was instituted defendant submitted the reports which were demanded, and he then filed a motion to dismiss the suit on the ground that the action was now moot. The trial judge thereupon, without a hearing, rendered judgment dismissing the suit at defendant’s costs. Plaintiffs have appealed.

The sole question presented on this appeal is: Did the trial court err in dismissing this suit upon application of the defendant, without a hearing and without the consent of plaintiffs?

The defendant has served as Sheriff of Evangeline Parish since his election to that office in 1964. He concedes that prior to the institution of this suit he did not file any of the reports which are required by LSA-R.S. 42:283 et seq.

This suit was instituted on August 15, 1967. In it plaintiffs demand that an alternative writ of mandamus be issued directing defendant to file reports of his expenditures for the fiscal years ending June 30, 1965, June 30, 1966, and June 30, 1967, as required by LSA-R.S. 42:283 et seq., or show cause why he should not be compelled to do so. Pursuant to that demand, the trial judge issued an order on the day the suit was filed directing defendant to file the reports which plaintiffs had demanded or to show cause on September 8, 1967, why he should not be compelled to file them.

On September 5, 1967, the defendant filed in this proceeding: (1) A report of all of the receipts and expenditures of his office covering the period beginning on May 1, 1964, and ending on June 30, 1967; (2) a certificate of the Clerk of Court of Evangeline Parish certifying that a copy of that report had been filed in his office; (3) a certificate of the Secretary-Treasurer of the Evangline Parish Police Jury certifying that a copy of the report had been filed in his office; and (4) a formal motion by defendant that the suit be dismissed on the ground that it is now moot and without controversy.

No hearing was held on that motion to dismiss. The trial judge nevertheless rendered judgment on September 5, 1967, dismissing this suit at defendant’s costs. In his reasons for judgment and in the decree itself the trial judge stated that “defendant did comply with the demands of the plaintiffs,” that the report filed by defendant complied with the requirements of LSA-R.S. 42:283 et seq., and that “plaintiffs’ suit has become moot and without controversy.”

LSA-R.S. 42:283 provides that sheriffs, and certain other public officials and boards, “shall furnish annually to the governing authority and clerk of court of their respective parishes, a written itemized report showing the expenditures made by their respective offices, boards, or commissions, whether made out of the salary or expense funds of said offices or members of their respective commissions or boards, or otherwise.”

Other provisions of the Revised Statutes require that the reports submitted by the sheriffs of the various parishes pursuant to LSA-R.S. 42:283 et seq., shall include the names of and the salaries paid to all officials, deputies and employees, the expenditures made for office supplies and furnishings, the amounts paid for the purchase and maintenance of automobiles and other vehicles, the expenditures made for transporting prisoners, fugitives and insane persons, the cost of feeding prisoners, and other expenditures. See LSA-R.S. 42:284-42:288.

The report which was filed by defendant in this proceeding appears to contain all of the information required by the [766]*766above cited sections of the Revised Statutes. Plaintiffs argue, however, that defendant has not complied with these statutory requirements because: (1) The reports which he submitted covering the period from May 1, 1964 to June 30, 1966 were prepared by the “Legislative Auditor” rather than by the sheriff; and (2) the report covering the period from July 1, 1966 to June 30, 1967, is defective in that it fails to list the salaries of “officials” and the “expenditures for transporting prisoners, fugitives and insane persons.”

We find no merit to either of these arguments. The first 12 pages of the report, covering the period from May 1, 1964, to June 30, 1966, obviously were prepared by the Legislative Auditor pursuant to LSA-R.S. 49:423 be filed with 423 et seq., because a statement to that effect is contained in the report itself. The law does not require, however, that a copy of the auditor’s report made pursuant to LSA-R.S. 49:423 be filed with the clerk of court and the police jury. The record shows that defendant filed a copy of that report with the Clerk of Court and with the Police Jury on August 30, 1967, which was after the instant suit was filed. Also, defendant alleges in his motion to dismiss the suit that the report was being filed by him in compliance with the demands of plaintiffs and the laws of this state, and that it shows the “salaries of officials, salaries of deputies, salaries of other employees, office supplies and furnishings, purchase of automobiles and other vehicles, maintenance and upkeep of automobiles, transporting prisoners, fugitives and insane persons, feeding prisoners and other expenditures” during the period of time it purports to cover. It is apparent from these allegations that defendant has adopted the report of the auditor and has submitted it as his own report. We do not interpret LSA-R.S. 42:283 as requiring the Sheriff personally to prepare the reports therein required, and we think it is immaterial that the auditor prepared that report pursuant to the requirements contained in another statute. We hold, therefore, that the filing of the auditor’s report in the instant suit was an adequate compliance with the above cited section of the Revised Statutes.

Our examination of the report filed by defendant covering the period from June 30, 1966, to June 30, 1967, convinces us that that report lists the expenditures for salaries of “officials” and expenditures for “transporting prisoners, fugitives and insane persons.” Substantially the same form was used by the Sheriff in preparing that report as had been used by the auditor in preparing a report for the earlier period. In each of these reports the salary of the Sheriff and the salaries of all of his deputies and employees were listed. We think that includes expenditures for the salaries of “officials.” The reports also show “traveling expenses” and the expenditures made by the Sheriff for “maintenance and operation” of automobiles. We are convinced that this includes the expenses incurred in “transporting prisoners, fugitives and insane persons.”

Plaintiffs contend, further, that the trial judge erred in dismissing the suit upon application of the defendant, and without a trial or hearing. It is argued that an order or judgment of dismissal, before a hearing or trial, can only be rendered upon application of the plaintiff. In support of this argument plaintiffs cite LSA-C.C.P. art. 1671 and the cases of Senseley v. First Nat. Life Ins. Co., 205 La. 61, 16 So.2d 906 (1944), and St. Bernard Trappers’ Ass’n, Inc., v. Michel, 162 La. 366, 110 So. 617 (1926).

We agree that ordinarily the defendant is not entitled to obtain an ex parte order or judgment of dismissal of the suit as long as a controversy exists between the parties. We think the court, [767]

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Bluebook (online)
209 So. 2d 764, 1968 La. App. LEXIS 4983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-sylvester-v-pitre-lactapp-1968.