The plaintiff, claiming to be the duly and legally appointed Sheriff of Plaquemines Parish, to succeed the late Sheriff L. Decomine Dauterive, instituted mandamus and injunction proceedings against Jerome A. Hayes, Supervisor of Public Funds, and Rufus W. Fontenot, Collector of Revenue, in the Ninteenth Judicial District Court for the Parish of East Baton Rouge, to have determined the question of title to the office.
The Supervisor of Public Funds has authority to audit the Sheriff's accounts and the Collector of Revenue has the right and authority to collect taxes where a Sheriff has died and the Coroner is acting as Sheriff.
The plaintiff alleges that the unexpired term of the deceased Sheriff was less than one year and, therefore, under the provisions of the Constitution, the Governor had the authority to appoint him to the office.
The legality of the plaintiff's appointment was questioned on the ground that the unexpired term of the deceased Sheriff was more than a year and, therefore, it was the mandatory duty of the Governor, under the provisions of the Constitution, to call an election for the purpose of electing his successor. *Page 290
The case was tried on an agreed stipulation of facts and the defendants consented to waive the legal delays for regular trial.
The judge of the district court rendered judgment in favor of the plaintiff, recognizing him as the duly and legally appointed Sheriff of Plaquemines Parish and issued a writ of mandamus requiring the Supervisor of Public Funds to turn over to him the records of the office and also issued an injunction restraining the Collector of Revenue from attempting to act as Tax Collector in the Parish.
Some eight hundred taxpayers, electors and residents of Plaquemines Parish, the Deputy Sheriffs appointed by the Coroner, as Acting Sheriff, and the members of the Police Jury of Plaquemines Parish, filed motions in the district court claiming that under the provisions of Article 571 of the Code of Practice they were entitled to a suspensive appeal. The trial judge denied the motions on the ground that the movers were without sufficient pecuniary interest in the case.
The defendants applied to this Court for writs of certiorari and prohibition under our supervisory jurisdiction.
The taxpayers, the Deputy Sheriffs and the Police Jury of Plaquemines Parish filed a petition in this Court alleging that the plaintiff and the defendants in the mandamus and injunction proceedings, by collusion and fraud, had sought to deprive the Twenty-Fifth Judicial District Court for the Parish of Plaquemines of its jurisdiction to hear and determine an intrusion into office suit which the plaintiff would be compelled, under the law, to file against the *Page 291 Coroner, as acting Sheriff, to be recognized as the Sheriff under the purported appointment by the Governor; that through collusion and fraud they had sought to evade the law which required an intrusion suit to be filed to test title to the office and resorted to injunction and mandamus proceedings, through which, under the settled jurisprudence, title to office cannot be tested or determined; that through collusion and fraud they had illegally attempted to have the court determine title to the office when the real parties at interest, including the Coroner, as acting Sheriff, were not before the court, with a view of indirectly binding them and collusively obtain such a judgment; that the record shows there was collusion between the plaintiff and the defendants because the affidavit he signed, annexed to his petition for writs of mandamus and injunction, was dated and signed prior to the time that the Governor issued the alleged and purported commission to him as Sheriff; that the parties stipulated certain facts which are untrue and contrary to the real facts in the case, for instance, that the Supervisor of Public Funds had possession of the books and records of the office, whereas, it appears from his letter that he had never taken possession of the books and records to audit them; that the Coroner, as acting Sheriff, and the Police Jury were the only ones in possession of the books, records and office of the Sheriff of Plaquemines Parish; that the plaintiff and the defendants, after the case had been regularly set for trial, advanced the hearing thereof on the merits by several days, the defendants waiving their preliminary rights and delays; that *Page 292 the State Supervisor of Public Funds has no interest in this litigation — simply having the right under the law to audit the Sheriff's books; that the Collector of Revenue has no interest in having determined who is the Sheriff of Plaquemines Parish, because his sole right under the statutory law is to act as Tax Collector as long as the Coroner of the Parish is acting as Sheriff and occupying that office as such; that, obviously and manifestly, the taxpayers, the deputy sheriffs, and the Police Jury, whose taxes, revenues and salaries, respectively, are affected, and the Coroner who occupies the office of the Sheriff by virtue of the Constitution, upon the death of Sheriff Dauterive, are clearly parties at interest; and that the plaintiff and the defendants have sedulously avoided filing any proceedings or pleadings through which the real parties at interest in this case would be made parties thereto.
The jurisprudence is firmly established in this State that a taxpayer has a right to invoke judicial authority to have determined the legality of any act which would tend to increase the burden of taxation or otherwise unjustly affect the taxpayer or his property, and the mere fact that the taxpayer's interest is small and incapable of accurate determination, is not a sufficient reason to deprive him of his right to resort to court, because regard is had for the public character of the proceeding in which the taxpayers are interested and have complained. Donaldson v. Police Jury, 161 La. 471, 109 So. 34; Borden v. Louisiana State Board of Education, 168 La. 1005, 123 So. 655, 67 A.L.R. 1183; *Page 293 Graham v. Jones, 198 La. 507, 3 So. 2d 761; Stewart v. Stanley,199 La. 146, 5 So. 2d 531, 535; Ricks v. Close, 201 La. 242,9 So. 2d 534; Black v. New Orleans Ry. Light Co., 145 La. 180, 82 So. 81.
Article 571 of the Code of Practice reads, as follows: "The right of appeal is given, not only to those who were parties to the cause in which a judgment has been rendered against them, but also to third persons not parties to such suit, when such third persons allege that they have been aggrieved by the judgment."
In the instant case, the taxpayers, the deputies and the Police Jury have a definite pecuniary and serious interest and will be aggrieved in the event the unexpired term of the deceased Sheriff Dauterive was more than a year because then the Governor will be without right and authority to appoint his successor and would be compelled, under the mandatory provisions of the Constitution, to call an election for that purpose. The fact that there are serious charges of collusion and fraud against the plaintiff and the defendants, to deprive the real parties at interest of their day in court and to have their rights prejudged in a consent proceeding unquestionably shows that they would be aggrieved by such a judgment and, therefore, they are, as a matter of right, entitled to appeal under the above quoted Article. The prayer of their petition that we invoke our supervisory jurisdiction and grant the suspensive appeal ourselves or issue a writ of mandamus to the district judge to compel him to grant them a suspensive appeal, as a matter of right, is well founded under the law and should have been granted. *Page 294
The serious charges of fraud and collusion in this case should be inquired into by the court contradictorily with the parties who have made them and who have a real and substantial interest in the case and not those who have for all practical purposes consented to the judgment.
In the recent case of United States v. Johnson, 63 S. Ct. 1075, 1076, 87 L. Ed. 1413, the Supreme Court of the United States refused to consider the case and set aside the adjudication therein, it having found the action to be a collusive one and that there were no genuine adversary relations between the parties. The Court stated: "The Government does not contend that, as a result of this cooperation of the two original parties to the litigation, any false or fictitious state of facts was submitted to the court. But it does insist that the affidavits disclose the absence of a genuine adversary issue between the parties, without which a court may not safely proceed to judgment, especially when it assumes the grave responsibility of passing upon the constitutional validity of legislative action. Even in a litigation where only private rights are involved, the judgment will not be allowed to stand where one of the parties has dominated the conduct of the suit by payment of the fees of both. Gardner v. Goodyear Dental Vulcanite Co., 131 U.S.Append. ciii, 21 L. Ed. 141."
Furthermore, since the early case of Guillotte v. Poincy, 41 La.Ann. 333, 6 So. 507, 5 L.R.A. 403, the jurisprudence has been uniform that the right or title to office cannot be litigated and determined in injunction and mandamus proceedings *Page 295 where the claimant to the office is not in possession thereof. The issue as to the right or title to office can only be properly presented to court by and through an intrusion into office proceeding against the de facto claimant. State ex rel. Bolin v. Webster Parish School Board et al., La.App., 157 So. 142, 145; Goldman v. Gillespie, 43 La.Ann. 83, 8 So. 880; and State ex rel. Bourg v. Turner, 152 La. 828, 829, 94 So. 411.
In the instant case, the plaintiff does not claim or pretend that he is in possession of the office but, on the contrary, he admits that the Coroner, as acting Sheriff, is in possession and custody of the office and refuses to yield it to him.
This Court has consistently and uniformly granted to persons who were not parties in a particular lawsuit the right to be heard on the issues, the decision on which would adversely affect their rights. We have consolidated cases where the same issues were involved and where there were different parties. We have withheld our opinion in cases until the parties in another lawsuit involving the same question had an opportunity to argue and present their case to us and we have liberally allowed parties to appear before the Court where they claimed their rights were adversely affected or they were aggrieved by a judgment — all of which was done in the interest of justice and to prevent a premature determination of the rights of parties who were not before the Court. This is particularly true in matters of public interest, as a great many cases of the docket of this Court will reflect. Graham v. Jones, supra. *Page 296
The mere fact that the various documents in this case were filed under three separate numbers does not for one moment change the fact that this is one lawsuit, and, therefore, all of the petitions and oppositions to them should be considered together, otherwise the Court would not have a complete picture of the case before it.
It is my view that it is error for the Court to refuse to permit real parties at interest to contradictorily present to the court the serious issues that have been raised by them. The judgment of the district court and the majority decision of this Court having denied the interested parties herein the right to present these issues do not settle the case but are only provocative of additional litigation because they certainly cannot foreclose and determine the rights of the real parties at interest, some of whom the court refused to hear and the other, the Coroner and acting Sheriff, who stood on his rights to require a proper suit in the court having jurisdiction over him.
In the case of Chase National Bank v. City of Norwalk,291 U.S. 431, 441, 54 S. Ct. 475, 479, 78 L. Ed. 894, 901, the Court said: "The law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger. Whether under the Ohio practice it would have been possible for the trustee to intervene, we have no occasion to determine. Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights." See, also, Hansberry et al. v. Lee et al., 311 U.S. 32, 61 S. Ct. 115, 85 L. Ed. 22, 132 A.L.R 741. *Page 297
The plaintiff proceeded only against the defendants who were not seriously and bona fidely questioning his right to the office of Sheriff but were consenting thereto. He thereby sought to avoid bringing a suit against the real party at interest, who is the Coroner of the Parish of Plaquemines, acting as Sheriff thereof, and sought to have the title to the office determined before a court which did not have jurisdiction of an intrusion into office suit between the plaintiff and the Coroner, as acting Sheriff. Obviously, the majority decision is nothing more than a premature expression of opinion on the merits of the case as the real party, the de facto officer, is not even before the Court. The result of this is that although under the established jurisprudence of the United States Supreme Court the Coroner, as acting Sheriff, is not bound by the judgment, nevertheless, if he elects to contest the case with the plaintiff, he will be at a serious disadvantage on the issues presented by the merits of the controversy because the majority members of this Court have previously expressed their opinion thereon without knowing what other issues he might make, other provisions of the Constitution he might invoke, other authorities he might cite, and other contentions he might rely upon that were not presented by the defendants in the alleged fraudulent, collusive and consent proceedings.
For these reasons, I respectfully dissent. *Page 298