Concurring Opinion.
Fjgnneh, J.' Article 196 of the Constitution of tho State authorizes the impeachment of various public officers named therein for the following specified causes, viz : “ For high crimes and misdemeanor, for nonfeasance or malfeasance in office, tor incompetency, for corruption, favoritism, extortion or oppression iii office, or for gross misconduct or habitual drunkenness.”
Article 200 provides as follows: “ For any of the causes specified in ■article 196, judges of the courts of appeal, of the district courts throughout the State, and of the city courts of Now Orleans, may be removed from office by judgment of the Supreme Court" of this State issued in a suit instituted by the Attorney General or a district attorney in the name of the State, on his relation. The Supreme Court is hereby vested with original jurisdiction to try such causes; and it is hereby made the duty of the Attorney General or of any district attorney to institute such suit, on the written request and information of fifty citizens and taxpayers residing within the territorial limits of the district or circuit over which the judge against whom the suit is brought exercises the functions of his office. Such suits shall be tried after citation and ten days’ delay for answering, in preference to all other suits, and wherever the court may be sitting; but the pendency of such suit shall not operate a suspension from office. In all cases where the officer sued, as above directed, shall be acquitted, judgment *164shall be rendered jointly and in solido, againstthe citizens signing the request, for all costs of suit.”
This suit is brought against the defendant judge under the foregoing provisions, on the relation of the Attorney General, acting on a petition signed by eighty-eight citizens and taxpayers, including one judge of the same court of which defendant is a member, and thiity reputable members of the New Orleans bar.
The petition charges that the defendant “has been guilty of nonfeasance and of malfeasance in office, of favoritism and oppression in office, and gross misconduct, and that he is incompetent for the duties of his office and should be removed.”
These charges are supported by eight distinct specifications.
The first specification, enlarged as it is by the elaborate answer of respondent and by the reception of evidence without objection, involves the judicial conduct of respondent in a certain cause pending in his court under the title of the succession of Nicholas Quiazzaro. The following is a history of the proceedings in the case:
Nicholas Quiazzaro died in September, 1868, leaving a considerable estate, a widow in community, two living minor children and another who was born after his death.
The succession was opened in the then Second District Court. The widow was appointed and qualified as tutrix of her minor children, and an under-tutor was appointed. The succession, however, was administered by an administrator, who was duly discharged in June, 1870, when he handed over to the tutrix the residue of the estate, consisting of $17,715.17 in cash, and about $6,000 in promissory notes.
Under tlie law of this State, the tutrix, as surviving widow in community, was the owner of one half the estate and the usufructuary of the remaining half belonging to her children And in so far as the estate consisted of money, her usufruct made her the owner of the whole, subject to the duty of accounting to her children at the termination of the usufruct. The minor’s rights were also scoured by a general mortgage on all the immovable property of the tutrix.
We have no further concern with the case until December 28, 1880, when the cause liad passed into the division of the Civil District Court, presided over by respondent, and when two of the heirs had reached ■the age of majority and only oneremained a minor, to wit: Arsene A. Quiazzaro. We extract from defendant’s answer his account of the proceedings then had':!
“ On December 28, 1880, the tutrix presented another petition, averring her ownership of the two lots of groundin’ this city, which *165had been bought since her appointment as tutrix, her indebtedness to her children, the large tax encumbrance on these properties, their unprofitableness as a source of revenue, the advisability of selling the same, and asking for the appointment of experts to appraise the property, and for the convocation of a family meeting to advise about the rights of the minor. On December 29th, respondent entered the proper order on this petition, appointing experts and convoking the family meeting. On December 30, 1880, the deliberations of the family meeting held that day, approved by the undertutor, appraising the property at $3000, and advising the sale at public auction for one-half {!) cash, and the other half at one year’s credit, were presented to respondent, and by him homologated. No adjudication having been made under this order, the tutrix, on February 8, 1881, filed her petition stating her indebtedness to her children, and her desire to .settle with them ; that she was utterly destitute of means, except the two properties above mentioned, which were a burden rather than a source of revenue, they being out of repair, and seldom rented on that account, and encumbered with taxes 'to such an extent that they were about to be sacrificed at sheriff’s sale; that she had caused them to be offered at public sale, but that she could not sell them unless authorized to sell them free of the minor’s mortgage. She prayed for convocation of family meeting to authorize erasure of minor’s mortgage in case of sale, and to íeceive funds of minor realized from sale, to be reinvested by her. On February 12,1881, respondent endorsed on said petition'an order convoking a family, meeting. The family meeting was held the same day. Two days afterwards, on February 14th, the tutrix filed the % roces verbal of this family meeting, recommending the erasure of said minor’s mortgage in case of sale, accompanied by a petition asking the homologation of the same, and for authority to erase the minor’s mortgage.”
Before acting on this petition the judge very properly considered that it was his duty to examine into matters in order to determine whether the reception and investment of any funds resulting to the minor could be safely trusted to the tutrix, whose usufruct had been terminated by a second marriage, or whether he should himself supervise their control and investment. To that end, he says:
“ That respondent accordingly, thereupon, on the 23d day of February, 1881, appointed Joseph Garidel, Esq., one of the experienced deputy clerks of the court, as expert, to inquire and report to the court the amount of taxes and charges due on the properties aforesaid. Ho also instructed said Garidel to examine and-report upon the manage*166ment of the estate, and lo whom Ihe net proceeds of the property should go — to the major heirs or to the minors. Respondent also had the testimony of Garidel, and of Ben Onorato, auctioneer, taken as to the value of the property and as to whether the taxes and penalties could be paid at a discount.
“ On April 5th, 1881, Garidel presented his report, showing privileged taxes and charges against the estate amounting to $2,317.65, setting forth the mismanagement of the estate, and reporting against the claims of the majors lo participate 'in ihe net proceeds, if any, of the sale of the property.
“ Thereupon, respondent entered the following order upon the above mentioned petition of February 1st,. 1881:
“It is ordered, adjudged and decreed that the proces verbal of the 12th of February, 1881, be homologated and approved, and the recorder of mortgages directed to erase and cancel the general mortgage in favor of Arsene Adelaide Quiazzaro, in so far as the same affects or operates-upon the property described in the petition and proees verbal of the date aforesaid.
“It is further ordered, adjudged and decreed that the property described as aforesaid be sold for cash, by Ben Onorato, auctioneer, to the highest bidder, after usual advertisements prescribed by law.
“It is further adjudged and decreed that a proces verbal of the sale be filed in court, and the price realized from said sale be deposited in the judicial depository, there to await the order of the court for the-payment of taxes and charges, upon Jhe court’s approval.
“It is further ordered, adjudged and decreed that Henry Bier be authorized to settle the taxes due on said property; first filing a statement at what rates said taxes can be settled, and subject to the court’s approval.
“It is further ordered, adjudged and decreed that any surplus remaining from the amount realized from said sale, after payment of the taxes, charges and costs due by said property, up to the amount of the general mortgage, in favor of Arsene A. Quiggaro, be invested in State registered bonds, under Act of 1857 and Article 348 of the Civil Code.
“Audit is further ordered that a fee of fifty dollars be taxed in favor of Jos. Garidel, as costs.”
We are compelled to say that, in referring to an expert the question “to whom the net proceeds of the property should go, to the major heirs or to the minor;” in accepting and acting upon his report “ against the claims of the major heirs to participate in the net proceeds, if any, of the sale of the property ; ” and in entering, in effect, *167a judgment, divesting the major heirs of their interest and appropriating the whole to the minor, without any notice to, or hearing of, said majors, the judge exercised powers utterly foreign to the judicial office as constituted under the laws of Louisiana. The powers confided to masters in chancery and judicial referees under the systems prevailing in some other States do not exist, to the same extent, in Louisiana. Except in the case of arbitrators, who can only be appointed by consent of all parties, experts are appointed only for the purpose of stating intricate accounts, or furnishing the judge with information as to facts, never to ascertain or report legal conclusions from such facts. C. P. Arts. 441 to 462.
We must say, however, that we find, neither in the order of the court nor in the report of the expert, any reference of such question to the expert or report thereon by him ; and if such reference and report were made, as stated by respondent, they must have been in oral form.
It is very certain that the judgment of the court directing the entire residue of the proceeds of the sale to be devoted to the satisfaction of the minors mortgage, to the exclusion of the major heirs, was exporter null and void, and rendered without any authority of law, and that it is supported by no fact or reason apparent on the record. This act-had an important sequence, which will be hereafter alluded to.
The judge proceeds in his answer as follows :
“Under this decree the property was sold, realizing the sum of $2025; the money was deposited by the auctioneer to his credit in the Branch Depository of the State National Bank, the authorized depository of the Court; the widow, on her petition, was authorized to sign deeds of sale; the tax liens were, on her petition,, transferred to the fund in Court; the State tax collector was ordered to strike off the illegal penalties and interest; and orders were from time to time entered, directing the payment of taxes, costs, fees and charges.”
The funds having thus reached the judicial depository, it is important to examine the provision of the law and of the rules of the Civil District Court, with reference to the handling of such funds.
Art. 133 of the Constitution declares : “ The Civil District Court for the parish of Orleans shall select a solvent incorporated bank of the city of New Orleans as a judicial depository. Therein, shall be deposited all moneys, notes, bonds and securities (except such notes or documents as may be filed with suits, or in evidence, which shall be kept by the clerk of court) so soon as the same shall come into the hands of any sheriff or clerk of court; such deposits shall be re*168movable, in whole or in part, only upon order of Court. The officer making such deposits shall make immediate and written return to the court of the date and particulars thereof, to be riled in the cause in which the matter is pending, under penalties to be prescribed by law.”
The rules of the Civil District Court (rule 24), contain the following provision :
“ The--Bank of the city of New Orleans is selected as the judicial depository, under Article 133 of the Constitution, and Act No. 33 of 1880.
2. All moneys, bonds, notes, etc., coming into the hands of any clerk, sheriff, liquidator, receiver, syndic, commissioner, administrator, curator, executor, tutor, auctioneer, notary or other officer of court, under any order or process of court, or arising from the sale or administration of any property under control of court, or from any party to a suit, unless the order or judgment of court under which the same is realized direct the same to be otherwise deposited or disposed of, shall be deposited in said judicial depository, in the name and to the credit
' of the court and such officer, and due and immediate return thereof ■shall be made to the court and filed in the cause.
3. Drafts or orders on the bank for the payment of money or delivery of property, shall be made to the order of the person entitled, thereto, or his attorney duly authorized, and. shall specify in what particular suit, or on what account the money or property is to be paid out or delivered.
4. Such orders or drafts shall be drawn by the officer, pursuant to an order of the judge of the division having control of the cause, wherein the property or money has been received.
5. No order, unless by consent, shall be granted, except on regular notice or order to show cause duly served on the attorneys of all parties ■who hewe appeared therein.
6. No order shall be granted, based upon consent, unless such consent be reduced to writing, signed by all parties and filed in the cause.
These rules of the Civil District Court were adopted by all the five judges thereof acting as one body, and rule 29 provided : “ The rules shall not be altered or amended except by the vote of a majority of the judges.” It is not claimed that rule 24 had ever been changed. It was, therefore, of binding force and effect upon the judge, and having been a participant in its confection and adoption, he could not plead ignorance thereof.
The important and salutary objects of the Constitutional provision and of the rule are evidently to destroy the possibility of the d'iver*169si on or miscarriage of any fuñas subject to judicial control by tho following provisions:
1st. All sucli funds, of whatever character, are required to be deposited, as soon as realized, in the judicial depository and the performance of this duty is secured by requiring an immediate return of •such deposit to the court, failure to make which is, by Act 33 of 1880, made a criminal misdemeanor, punishable by fine and imprisonment.
2d. Once in the judicial depository, such funds cannot be withdrawn, except upon an order or dz-aft made payable directly to the order of the person entitled to receive it, and specifying on what account the payment is made, pursuant to an order of the court which, necessarily, in order to enable the officer to comply with the rule, should specify the person and the account.
. 3d. In order to protect parties interested and the court itself from improvident orders granted on ex parte representations, the rule forbids the granting of such ordei-s, unless by consent, without regular notice or order to show cause, served on the attoz-neys of all parties.
4th. Even consent orders are forbidden unless, the consent be in writing, duly signed, and filed in the cause.
From the moment that these funds reached the judicial depository, the course of the judge is marked by a conspicuous disregard of every .provision of the foregoing rule, as well as of all sound principles of ■judicial conduct.
lie has utterly igziored the existence of the tutrix, the under-tutor, the major heirs and the attorney of the tutrix, and has acted precisely as if the law1 constituted him personally the sole administrator of the minor’s estate, without responsibility to anybody but himself.
He appoints various experts, fixes their fees and ordez-s their payment, to an aggregate amount of one hundred and fifty dollars, without application by, or notice to, anybody.
He settles the fees and expenses allowed to the attorney of the tutrix to the amount of $181.80, and directs their payment by ex parte orders without any application therefor on the part of the tutrix, so far as the •record shows, and without notice.
In like manner, various other costs, charges and expenses, besides taxes, are allowed and paid.
All formalities of contradictory proceeding, of filing account, of giving notice thereof by publication and otherwise, of legal delays for oppositiozi thereto and for final judgments of homologation, are entirely dispensed with.
Where is the legal authority for such proceedings? None is referred *170to and none exists. No precedent is produced; and, although the judgedeciares that he has pursued a like “course in other cases with beneficial results,” not even a precedent of bis own court is referred to; and the allegation, if true, would certainly not support or mitigate the illegality of the proceedings.
In the disbursement of these funds, he has violated the rules of the court by granting orders without written consent, and without notice^ or order to show cause..
He has further paralyzed the protective operation of the rules by interposing between the person entitled to receive the money and to whose order alone the checks should be payable, irresponsible agents of his own selection, who diaw the money and are intrusted with the duty of conveying it to the party entitled. Thus the very danger which-the rule was intended to avert is incurred and aggravated; and funds, which even bonded public officers are not trusted to take or hold in their possession, are passed into the possession of individuals having no title to them and furnishing no security for their faithful custody and appropriation. ■'
If the funds of this estate have been misappropriated and lost under such proceeding's, whose fault is it?
Let us now examine a few of the most important of these orders, to exhibit more clearly the manner in which this business was transacted.
On September 36th, 1881, the following order is entered on t'he minutes :
“ Let the Judicial Depository be and it is hereby ordered.to pay out of the funds of this estate the sum of $396.89, the same to be applied to the payment of State taxes and of F. A. Luminais for services rendered herein under the appointment of tlie court, viz:
To State taxes............................................$386 35
To F. A. Luminais........................................ 10 00
$396 35”'
It is obvious that the only person entitled to receive payment of the State taxes was the State tax collector, and the order should have directed the payment to be made on check to his order. If this had been done, there could have been no risk of loss. But it is admitted that the judge entrusted to bis minute clerk the direct collection of the money paid undei this order, and the duty of paying therewith the-State taxes. What was the result? Although the clerk collected the money on September 16, 1881, it is shown that the taxes were not paid until November 3 following. No care was taken by the judge to seo *171to the performance of the duty confided by him to his agent, by requiring the return or exhibition of the tax receipts. And, in fact, the entire snm narrowly escaped loss ; for it appears that the clerk, after getting the money, went on a spree and lost or gambled it away, and was only able to replace it later through the kind offices of a friend, who, after full confession of his fault, lent him the sum on pledge of his future salary, from which source, be it said, the loan was duly repaid.
On February 10, 1882, the following order appears duly entered on the minutes of the court.
“ On account presented for taxes due on the property sold in the succession of Nicholas Quiazzaro and still unpaid, it is ordered that the same, amounting to $147 26 be paid by B. Ouorato, administrator, and charged to the succession.”
Onorato paid this money, to whom is not apparent.
Although the conduct of the judge in this succession had been the subject of investigation by two grand juries, and although the entries upon the minutes had been all the time open to scrutiny, the genuineness of this order was never disputed by the judge, and even in his answer in this cause no such dispute is presented, but, on tire contrary, the orders generally are referred to and admitted. But, after the cause was at issue, investigation disclosed the fact that no such taxes were due or had ever been paid. And, thereupon, the defendant is driven to the necessity of disputing the correctness of the minutes of his own court, of denying that he ever issued such an order, and of charging that it was forged and fraudulently entered upon the minutes of the court by his then minute clerk, who is now dead. This may be true. I will not say even that I believe it to be untrue. But, surely, under the most charitable construction, it is a desperate predicament for a judge to be placed in, when, in defense of his own character, it is necessary tor him to falsify the minutes of his own court, and to fasten upon a dead man the guilt of such a crime, with no evidence.to support the charge except his own, which cannot be contradicted.
Charity for the living and for the dead closes my mouth against the expression of an opinion on this subject, when it is not, in my judgment, necessary to the decision of this case.
One thing is certain: the money was paid on the order; the money has been made away with, and is lost to the estate. Whose ever the crime, the possibility of its commission and the consequent loss, are directly attributable to the fault of defendant.
*172But for his habit of granting orders in this illegal form and of delegating to his subordinates the duty of collecting them, the thought of attempting such a fraud would never have suggested itself to any one.
We come now to the winding up of this extraordinary administration.
On February 10th, 1882, an order was entered on the minutes, “ that B. Onorato, administrator, do render an account of the balance of funds in his hands belonging to the succession of Nicholas Quiazzaro.” The genuineness of this order is expressly admitted in defendant’s answer herein, with this statement, that “ this order was not complied with, possibly because it does not seem'to have been served -on him.”
The peculiarity of this order and the foregoing one, in styling Onorato (who received and disbursed these funds simply in the capacity of auctioneer who sold the property) administrator, does not appear to have struck the mind of the defendant until the necessity arose, as above indicated, of destroying the genuineness of the first order, when this feature is seized upon as a reasou why respondent could not have framed either of said orders, because he could never have styled Onorato administrator, although in one former order drawn, however, by an attorney, the same style was used, and-although the'books of the judicial depository show that the account-stood in the name of “ B. Onorato, administrator,” and although the only extant check of Onorato is signed “ B. Onorato, administrator.”
On March 3, 1882, the following order was entered on the minutes:
“More than six monthshaving elapsed since the sale of the property in the above succession, and no opposition to the distribution of the same having been made, and no one claiming any interest in the proceeds of said properly other than the minor Quiazzaro, it. is ordered, that the'proceeds of said property belonging to the succession of Quiazzaro, be invested in State consols, or bonds, of the State, known as ‘ Baby bonds,’ and that said bonds be registered by the Auditor of the State under Art. 348 of the Civil Code.”
The recitals of absence of opposition to the distribution aud of no one’s claiming an interest in the proceeds, afford a sufficiently slender support for this final order, when it is considered that the whole proceedings of distributions had been, not ex parte• (for that suggests at least one party), but without any party at all, and with’no pretence of notice in any form.
However, the order was made, and a certified copy of it having been supplied, the judge sent for one Charles E. Sel, a subordinate deputy in the record department of the Civil District Court, handed him said *173copy, and directed him to go to Mr. Onorato, get an order for the money, collect it and bring it to him.
It indicates the utter carelessness of the judge in such important matters that he should have supposed that Onorato would have paid out money on an order framed as this one, not even directing any such payment to be made either by him or by the judicial depository. Of course Onorato refused to pay, and Sel returned to the judge and reported the refusal with the reason given that the order did not specify any person whom he was to pay. Thereupon the judge interpolated in the certified copy, with his own hand, the words “and that said B. Onorato be ordered to pay the same over, to make said investment.”
This addition was never entered on the minutes, and the certificate under the seal of the court that it was a true copy from the minutes was thus converted into a falsehood.
With the order thus amended, Sel returned to Onorato, received from him a check payable to bearer, with the order of court attached, for the sum of $291.54, collected the money, returned and handed the money to the judge, who received it into his own hands. Although he had not advised himself of the state of Onorato’s account, and although his order did not specify the balance due, he did not count the money, but, as he states and as stated by Marks, another witness, he sent for his minute clerk, handed him the money, with instructions to go to Henry Bier, a broker of this city with whom defendant had already arranged to buy the bonds without commission, and invest in “ Baby Bonds.”
This was on Friday, March 3d, after business hours; the next day was Saturday, March 4th, a legal holiday; the next was Sunday; and so Bier was not seen until Monday, March 6th, when it appears that an investment was made in “Baby Bonds,” but only of the sum of $199.65, and the difference of $91.89 had disappeared and has never been traced.
Let any one read the article of the Constitution and the fourteenth rule of the Civil District Court, and imagine any contingency in which this money could, during this period, have been lawfully out cf the judicial depository, and first, in the hands of Sel, then in the hands of the judge, then in the hands of a minute clerk. What necessity was there for such proceedings? How easy and natural it would have been to have complied with the law by ordering the payment to be made in a check to the order of Bier, on delivery of the bonds ?
• Hence, if loss occurred, whose was the fault?
The defendant, in his answer, says:
“At the next session of the court on Monday, March 6, 18S2, re*174spontlenfc asked Luruinais about the bonds aforesaid, and was informed that Bier still had them, and that he was too busy to go up that day and get them.
“On the following day he made the same inquiry, and received substantially the same response ; and thereupon, respondent again sent for the said Charles E. Sel and directed him to go up to the office of said Bier and got the said bonds. That said Sel went to the office of Henry Bier, received from him a package of “baby bonds,” and delivered them to respondent.”
I will not enter into the painful conflict of testimony which hero ensues between the testimony of Sel and that of the judge, because, in my view of the case, it is not essential to the decision of the cause.
Sel brought the bonds in a package, with a memorandum attached showing tlie number of the bonds and the amount invested, viz: $199.65, which he says he read and observed the difference between the amount and the sum lie had collected on the oi’der. But this difference did not attract the attention of the judge, who, as he states, did not know the amount of the money which had been collected and handed to him. He states that he handed the bonds to the minute clerk with instructions to paraph them with an endorsement to this effect:
“Succession of N. Quiazzaro.
<; No. 842, . Civil District Court, ( Parish of Orleans.
“ This bond is the property of the minor, Arsene Adelaide Quiazzaro, purchased by virtue of a decree rendered in this succession, an (Lis not transferable, unless by virtue of a decree authorizing the same ; ” and then “to sign and seal the same with the seal of the court, and when so written upon, signed and sealed, to deliver the same to the counsel for the tutrix, who, from the time of the sale of the property in June, 1881, had besieged respondent with requests to direct the payment of the fund in court to the tutrix.”
This direction is in conflict with the plain requirements of Art. 348 of the Civil Code, which requires that, in case of such investments of minors’ funds, the bonds shall be registered in the office of the Auditor of the State in the manner specifically directed.
The excuse given for this departure from the law, is the impression of the judge that the Auditor would charge $3 for the registry of each bond, and that, the bonds being only for $5 eacli, this would consume their value; but it is clear under the law that the Auditor has no right to charge for such registry, and it does nob appear that it is the practice to do so.
*175This is tlie last that has ever been heard of these bonds; and although only ten days afterward, the judge discharged his minute cleric for intemperance and neglect of duty, it does not appear that he ever concerned himself about the question whether his directions had been complied with.
The minutes and the record of the case contain no trace of any of ■these proceedings touching the money and the bonds after the order of March 3,1882.
The minute clerk is dead; Lemonnier, the counsel of the tutrix, is ■dead; the records of the court are silent; and the defendant’s account of his conduct in reference to. the money and the bonds admitted to have passed into his manual possession, is established only by oral testimony of himself, corroborated in some points by Marks and Doran, but contradicted, in very important particulars, by Sel.
I do not deem it necessary to dwell upon this conflict of evidence, or to draw inferences which must be unfavorable to the veracity either of defendant or of Sel, who testified in his death-chamber, and who, since the trial of this ease, has gone to give his account before a Tribunal infinitely higher than any earthly one.
No further proceedings were had in the cause until April, 1886, after the lapse of four years. '
It appears, however, that, in the meantime, Mr. Soubit, the husband of one of the major heirs of Qniazzaro, had made some inquiries into -the matter and had called on the judge in person to inquire what had become of the money of the estate; but the judge dismissed him with ■the statement that the major heirs had no concern in the matter, or words to that effect; thus carrying out his ex parte decree of April 5th, 1881, already commented on.
Soubit employed a lawyer, who, after examining the record and as•eertainiug the position of affairs, advised Mm that the assertion of the rights of the major heirs would be troublesome and expensive, and that the amount involved did not justify his undertaking the case. Soubit .also consulted other attorneys, who did nothing.
And so matters rested until April, 1886, when the minor, Arsene A. <¿uiazzaro, having been fully emancipated, employed. counsel to look after her rights.
The record of the Quiazzaro case was now lost and, after the most ■diligent search, could not be found. Counsel could get no information except what was contained in the minutes of the court.
On April 29th, 1886, the following rule to show cause was filed and made returnable Friday, May 7, 1886:
*176“ Succession of N. Quiazzaro.
t No. 824. < Civil District Court for Parish. ( of Orleans, Division “E.”
11 Rule on administrator Jiled April 29, 1886.
“ On motion of A. Brieugne and Sambola & Ducros, of counsel for Miss Arsene Adelaide Quiazzaro, now duly dispensed from the legal age of majority.
“ It is ordered by the Court, that Ben Onorato, acting administrator of the aforesaid succession and depository of its funds, do show cause ou Friday, the 7th of May, 1886, at 11 o’clock a. m., why he should not pay her in cash, her orphan’s homestead of one thousand dollars, or else deliver or cause to he delivered to her, in lieu of the cash, Slate bonds, known as Baby bonds, for the like total amount, duly registered and made non-negotiable according to law, into which said homestead was to be invested, in pursuance of an order of his honorable court by the said B. Onorato, from whom mover lias never been able to have a-Satisfactory account of his acts and doings in the premises, and who was in law and in duty bouud to cause said investment to he made.”
The extraordinary character of this rule is freely commented on by-counsel, but we think it is easily accounted for.* Why should the minor’s counsel not have supposed that Onorato was administrator when they found him so characterized in three orders on the minutes? And, since the minutes furnished no suggestion of any other reason why the judge should have allotted the whole residue of the estate to the minor to the exclusión of the major heirs, the error of assuming tliat it must have been, in some way, a recognition of the homestead right, was not inexcusable. And, inasmuch as the minutes do not show the amount ordered invested in “JBaby bonds,” the claim of $1000 was not unreasonable.
The judge says that all memory of the transactions had passed entirely from his memory. Onorato was equally oblivious, and could find none of the orders or checks on which he had disbursed the money, except the last cheek for $291 54, and that was payable to bearer,, and he had no recollection to whom it had been delivered.
Onorato carried the rule to his counsel and was explaining his situation, when Charles E. Sel,' who at that time occupied a desk as a notary in the counsel’s office', overhearing the conversation, interrupted it and informed them that he was the person who got that check, and then told all about the transaction.
It does not appear, however, that Onorato communicated these facts either to the counsel of the minor or to the judge, until May 28tíi. The *177rule, in the meantime, had been thrice continued for various reasons, when, on May 28th, it was fixed and continued for the fourth time to the 4th of June, upon the objection of Onorato’s counsel to go to trial without the record. As the minor’s counsel was leaving the court he met Onorato, who then conveyed to him the information received from Sel, to the effect that he had collected the money and received the bonds and handed both to the judge in person. Thereupon the counsel returned into court aud informed the judge of what Onorato had said.
This, for the first time, seems to have occasioned a flash of recollection in the mind of the judge. He then sent for Sel and possessed'himself of the facts, as he has detailed them in his answer.
He thus became aware that his administration had resulted in the loss of the last remnant of the minor’s estate, and that Onorato, who had acted in strict obedience to his orders, was now being prosecuted, before Mm, to make good this loss.
That he should ever have sat again in the cause, for any purpose, 1 must pronounce' utterly improper and unjustifiable. Whatever may have been his confidence in the correctness of his own conduct, and whatever his opiniou on the question of his own legal or moral responsibility to the minor, the question raised by the rule was as to Onorato’s legal responsibility; and it is clear, beyond dispute, that if Onorato was legally responsible to make good this loss, the judge was morally, if not legally, bound to hold Onorato harmless. ,
On the 4th of June, before the rule was called for trial, he called the counsel for the minor into his private office, and there held a long interview with them m which he narrated and justified his conduct in the premises, invited their opinion as to whether he was morally or legally responsible for the loss, and received from them the plainest intimation that they so considered him. Nevertheless, he acted in the case by continuing the rule until June 11, when he stated that Mi'. Bier would be in court.
The 11th of June came, but Mr. Bier was not there. The judge called the rule, and on objections, the nature and validity of which are, in my view, immaterial, against the strenuous protest of the minor’s counsel, he ordered the rule continued indefinitely. And so matters stood until the adjournment of the then session of the court.
The conduct of the judge now became the subject of public gossip and scandal.
The matter was under investigation of two grand juries of the parish and,-though no indictment was found, the second grand jury, in ils published report, censured the official conduct of-the judge.
*178Matters finally culminated in the bringing of this suit.
The trial was remarkable for the length of time consumed, for the large amount of evidence taken, for the contradictions in the testimony, for the variety and number of circumstances which favored different theories of the facts, for the array of distinguished counsel appearing on either side and for the eloquence and ingenuity of the. arguments. One listening to these arguments, so far as the Quiazzaro case is concerned, would have supposed that the main, if not the only, issue was the guilt or innocence of the defendant of the crime of embezzling and converting to his own use the funds and property of the estate. The most ingenious and plausible theories of the facts and circumstances of the case were presented by opposing counsel on the one side inconsistent with his innocence, on the other precluding the possibility of his guilt. His enemies will readily accept the first; his friends, the last; the indifferent will be divided.
• I do not find it necessary to decide that question, but 1 give, the defendant the benefit of the statement, that if the success of the State’s case depended on proof of embezzlement by the judge, I should vote for his acquittal. If the Constitution had meant that judges were removable only for “ crimes and misdemeanors,” Art. 196 of the Constitution would have stopped with those words, and would not have, enumerated the other nine distinct causes of removal, including “malfeasance in office” and “gross misconduct.” In the use. of these terms it obviously referred to acts which were not “ crimes or misdemeanors.” It does not declare that any judge who shall bo convicted of “ malfeasance in office” or “gross misconduct ” shall be. removed; but it clearly means, that such offenses may be proper causes for removal, and it throws upon this court the grave responsibility of determining what kinds and degrees of malfeasance or misconduct should incur the penalty.
. In discharging this duty, we must pay due regard to the nature of judicial.duties, and to the broad shield of protection which is extended over the errors of judges in the exercise of their jurisdiction ; but we •must, at the same time, be mindful of the dignity of the office and .of the deep interest which the public has in tlie proper administration of justice, and in having judges whoso conduct occasions no just cause for reproach or for loss of confidence in their integrity and' reasonable discretion.
By “ malfeasance,” under all definitions, is meant the doing of tilings which one ought not to do, or the doing of illegal acts.
See Webster, Worcester, Abbott, Bouvier. The recital we have *179given of the proceedings in the Quiazzaro case exhibits a long trail of illegal acts, in clear violation of law and of the rules of his own court, and in excess of any jurisdiction conferred by law on any court in this State. Jurisdiction is defined to be the function of judging causes wherein rights are disputed; the power of hearing and determining a cause. Wells on Jurisdiction of Courts, p. 1; U. S. vs. Arredondo, 6 Peters, 709.
The jurisdiction which the judge had over the matters involved in the case entitled the succession of Quiazzaro, gave him authority to determine all questions which might be presented to him for decision by the paities thereto; but it gave him no authority to assume the personal administration of the estate, to enter judgments and grant orders without notice and of his own motion, to expend moneys, to handle funds and to commit them, for any purpose, into the hands of mere ministerial officers of his court.
Tf the law had committed to him such functions they would have been ministerial, and not properly judicial functions.
The case is made worse by the reckless carelessness with which the functions were discharged and by his disregard of the rules of his own court in the methods adopted.
The result of this malfeasance has been the entire loss of the estate, of the administration of which he thus took charge. The auctioneer, who acted strictly under his orders in disbursing the proceeds of the property sold, is sued to make good the loss.
The circumstances surrounding the loss of the funds have been of a character to subject the judge to grave suspicions of his integrity, and have led to investigation by grand juries. The scandal has been such that one of his fellow-judges, and thirty reputable members of the bar» who practice before his court, have felt justified in joining in the petition for his removal. The Attorney General of the State, who is an involuntary actor in the proceeding, after hearing all the evidence in the case, has felt authorized to address the court and argue in favor of .his removal.
If malfeasance of this kind, attended with such results; does not support the action for removal of the judge, what malfeasance, short of. proven crime, would support it? Would any citizens hereafter feel' justified in initiating an action for removal of a judge for any malfeasance not criminal, if the present demand were rejected? Would any court of impeachment, who respected the opinions of this tribunal, feel authorized to convict any judge or other officer for any malfeasance in office ?
*180Would we not, in effect, be obliterating from the Constitution the offense of malfeasance in office as a ground for either impeachment or removal by this Court U
To anyone who will calmly reflect upon the facts of this case, it must plainly appear that the only doubt as to its proper disposition arises from the simple fact that the officer involved is a judge.
If any other officer in the State were subject to removal by judicial process for malfeasance in office and gross misconduct, and were proven guilty of such clear violations of law and of the rules of his own office adopted by himself, resulting in such injury to others and in such imputations upon his official integrity, few would doubt the judgment of the court. So any administrator, executor, syndic or other judicial officer, charged with functions similar to those assumed by Ibis defendant, who had been convicted of like offenses would, unhesitatingly, be removed.
But the law, in the exercise of a wise policy, has hedged around judges of courts with peculiar immunities.
The Supreme Court of the United States holds this language in regard to the subject of judicial liability:
“It is a general principle, of the highest importance to the proper administration of justice, that a judicial officer in exercising the authority vested in him shall he free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge would be inconsistent with the exercise of this freedom and would destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial authority in a degrading responsibility: The principle, therefore, which exempts judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, obtains in all countries. Nor can this exemption of the judges from civil liability he affected by the motives with which their judicial acts are performed. The purity of their motives cannot in this way be the subject of judicial inquiry. * ■* * Controversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feeling, are being constantly determined in the courts. When the controversy involves questions affecting large amounts of property, or relates to a matter of general public concern, or touches the interests of numerous parties, the disappointment occasioned by an adverse decision often finds vent in irnpu*181tations of this character; and, from the imperfections of human nature, this is hardly a subject of wonder. If civil actions could be maintained in such cases against the judge because the losing party should see ñt to allege in his complaint that the acts of the judge were done with partiality or maliciously or corruptly, the protection essential to independence would be entirely swept away. New persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action.” Bradley vs. Fisher, 13 Wall. 347.
Judge Cooley after elaborating, with his usual perspicacity, the reasons underlying this doctrine, and after showing that the only authority to whom the judge owes an account of his conduct is the State, concludes as follows:
“Whenever, therefore, the State confers judicial powers upon an individual, it confers them with full immunity from private suits. In effect, the State says to the officer that these duties are confided to his judgment; that lie is to exercise his judgment fully, freely and without favor, and he may exercise it without fear; that the duties concern individuals, but they concern more especially the welfare of the State and the peace and happiness, of society; that, if he fail in a faithful discharge of them, he shall be called to account as a criminal; but that in order that he may not be annoyed, disturbed and impeded in the performance of these high functions, a dissatisfied individual shall not be suffered to call in question his official action in a suit for damages. This is what the State, speaking by the 'mouth of the common law, says to the judicial officer.” Cooley on Torts, p. 408.
Such is the law of this State, as of all other well-ordered countries.
Prior to the adoption of the present Constitution, with the exception of liability to removal by an address of two-thirds of all the members of both houses of the General Assembly, judges could be impeached only for “ crimes and misdemeanors.” Constitution 1868, Art. 81.
Thus, except for “crimes and misdemeanors,” judges, in the exercise of their official functions within their jurisdiction, were responsible t.o no earthly tribunal. Hence, no doubt, arise the theory and assumption upon which this case has been mainly defended, and the impression shared, perhaps, by the public, that the State, in order to maintain the demand for the removal of the judge, must establish, beyond a reasonable doubt, his guilt of a crime or misdemeanor.
Such theories and impressions have no foundation under the provisions of the present Constitution, on which this suit is based.
The framers of that instrument, prompted, no doubt, by then re*182cent experience, determined that the responsibility of judges could not be safely left confined within such narrow limits. They, therefore, to “crimes and misdemeanors,” added various other causes for removal, including malfeasance, non-feasance and gross misconduct; and they confided to this tribunal the discretion of determining what acts of that character would support a judgment of removal. In so doing, they doubtless supposed that, as judges ourselves, we would extend due protection to the rights, privileges and immunities of other judges; that we. would jealously guard them against the malice of disappointed litigants, and the base suspicions of censorious scandalmongers, who, Out of the corruption of their own natures, are prone to soil the purity of the most blameless with the slime of their foul imputations; and that we would cover their errors with that mantle of charity of which we ourselves deeply feel the need.
But, at the same time, it was certainly and confidently expected that we should carry, “full high advanced,” the standard of judicial dignity, honor and propriety; that we should exact of judges, in the control and disposition of funds confided to their judicial superintendence, a reasonable compliance with those rules of law and of their own courts which are provided to protect the interests of all parties concerned against improvident dispositions and to secure the funds themselves from embezzlement and loss; and that, in such matters, as in all others, they should pursue a line of conduct so clearly void of offense and so distinctly stamped upon the record, that their dealings with such funds, in case of loss, should not expose their integrity to suspicion, and be remitted for their vindication to conjectural inferences from contradictory testimony and to theories based on circumstantial evidence which support the innocence of the judge only by assaulting the integrity of his agent, who is dead, to whom he entrusted these funds without the slightest authority of law and who, if guilty, could only have accomplished the crime thiough the grossest carelessness of defendant. #
If defendant be civilly responsible to make good the loss occasioned to the minor, it could only be by reason of his having acted in such entire absence of jurisdiction as would emphasize the malfeasance and misconduct.
If he be not responsible, then so much greater is the necessity for enforcing against such malfeasance the only penalty' provided by law.
Under a profound sense of my duty, under the Constitution, to the petitioners, to the State, to the people, and to the judiciary, I am compelled to write what are to me “ a few of the unpleasant’st words that ever blotted paper,” when I announce that I concur in the decree of the court.