State ex rel. Breazeale v. Cannon

Dissentin'© Opinion.

Watkins, J.

The plaintiff prefaces his brief upon this application with this following statement, namely:

“We recognize and appreciate the conscientious labor which the court has expended in the evisceration of the true facts from the evidence presented in this complicated record.

“We should be slow .to dissent from or question the correctness of any conclusion of law or fact reached by the court after such careful and painstaking investigation.

“ In truth, we find that the court has decided all the questions of *289law involved in favor of relator, except those bearing upon the germinal question of defendant’s liability to removal from office.

“W.e further find that the court has substantially decided all the issues of fact presented in favor of relator, or in other words has-•held that all, or nearly all, the numerous charges of non-feasance- and malfeasance set forth in the petition are fully proved.”

I take this statement to mean that the plaintiff urges no objection-to the facts as related in the opinion.

Basing its conclusion upon the state of the whole case, our original opinion declares that—

“It will thus appear that the case of the relator is that the defendant, as sheriff and ex-oflcio tax collector, has been guilty pf a. technical disregard of the rules and regulations specified in the tax statutes with reference to the collection of taxes, and that the respondent’s failure to observe such regulations afforded opportunity for wrong-doing; not that respondent was guilty of any criminal act, or had failed ultimately to account for all the public moneys he had collected and received — for the fact is not denied that he had made all of his monthly, quarterly and even final settlements prior to the-filing of this suit.”

This proposition is not denied in plaintiff’s application, but, on the-contrary, it is affirmed to be true; and the insistence of plaintiff’s-counsel is, that for this “technical disregard of the rules and regulations specified” the defendant should be removed from office.

The argument of plaintiff’s counsel on this application, orally andi in writing, is chiefly confined to the seventeenth (17th) and nineteenth (19th) charges. . Let us see what is the statement of our .opinion with respect to them. It says:

“The seventeenth charge is as follows, viz.: It is shown that on December 26 and 80, 1892, or about said dates, (he) collected from the Texas & Pacific Railroad Company and the Southern Pacific Railroad Company some fifteen hundred dollars for State and parish-taxes; that he failed to pay to the parish treasurer the amounts so collected until abouo March 23, 1893, although he pretended to make on January 18, 1893, February 10, 1893, and March 10, 1893, true and faithful settlements of all taxes and licenses collected by him -during the respective months of December, 1892, and January and. February, 1893.” The substance of this charge is that the respondent collected the sums specified and thereafter failed and neglected *290to carry same into his accounts and settlements thereafter made, not that he had carried said moneyinto his settlements and accounts, and thereafter failed to pay same over to the parish treasurer. The respondent’s cash book does show that he had collected of the Texas & Pacific Railroad Company about cne thousand dollars on December 26, 1892, and the proof shows that in a settlement subsequently made this sum was not included. But the respondent affirms that when the omission was discovered, while he and the parish treasurer were engaged in checking up his stub book, it was immediately entered in the cash book at date of payment, a supplemental statement filed and the money paid over at once, with interest added, etc. 15 So. Rep. 632.

“ ‘ Nineteenth. It is shown that.he has failed absolutely to 'keep his cash book furnished to him by the State Auditor, as prescribed and required by Act No. 84 of 1892, in the manner required by law, viz.: He has failed to make therein the entries of the payment of taxes and other moneys paid him by the tax-payers at the time of such payments. That on December 26 and 80, 1892, or about that time, the T. & P. R. R. Co. and the S. P. R. R. Co. paid the amount of taxes due by each, amounting to several hundred dollars, and they were not entered in the cash book at the time.’ The sense of this charge is that the respondent has failed to keep his cash book in the manner prescribed by law, and not that he did not keep a cash book at all; in other words, that ‘he failed to make therein the entries of the payment of taxes and other moneys paid him by the tax-payers at the time of such payments,’ citing the instance of the two railroad companies. The statute relied upon by the relator requires that the auditor shall furnish the tax collector with a blank cash book, paged, ruled and divided into columns, in such form that the tax collector may enter therein the names of the persons making payments of taxes, dates of payments, amounts paid, on what account paid, etc. That law provides that ‘ the State taxes paid shall be first entered, and afterward a like entry of parish taxes shall be made.’ 15 So. Rep. 633.

“ ‘The tax collector shall make such entry or entries at the time the tax-payer makes the payment of taxes.’ The law then prescribes and defines the duties of the parish treasurer with regard to transcribing the entries of the tax collector from his duplicate cashbook, .and the kind of a certificate he shall append thereto. The final *291clause of the statute contains the penalty that is affixed to any violation of its provisions on the part of the tax collector, and it is in these words, viz.: In case of the failure of the tax collector to keep said book as above prescribed, he shall be, on complaint, dismissed from office, and shall be liable to fine and imprisonment, at the discretion of the court.’ Act 84 of 1892. What is the true intent and meaning of the phrase, In case of the failure of the tax collector to keep said book as above prescribed? ’ Does it not mean just what it says — ‘keep said book as above prescribed?’ That is to say, the tax collector is required to keep the cash book in the manner indicated above; that is, according to the designations of the act from 1 to 8. While it is true that the law requires the tax collector to make entries of the taxes paid at the time the tax-payer makes .the payment,’ yet it was not the intention of the Legislature to attach to any mere accidental omission of an amount of taxes paid, on the very date the payment was made, the severe penalties of the act. It could not have been the intention of the Legislature to declare that the omission to make an entry, however small, should subject the tax collector to dismissal from office, as well as to ñne and imprisonment. If such were indeed the case it would be scarcely possible for any tax collector to escape the consequences of the law.” 15 So. Rep. 633, 634.

Taking the two charges in connection, this further statement of the opinion follows, viz.:

“ But the proof is to the effect that the respondent paid in three hundred and fifteen dollars and twenty cents on March 10, 1893, and in April, 1893, tendered in full all the delinquent taxes collected from October, 1892, to April, 1893, but same were declined by the parish treasurer, pursuant to the instructions of the district attorney. But his receipt from the parish treasurer shows a full settlement made in July, 1893. It also appears that all of these collections are properly entered in the respondent’s cash book of 1893. The respondent explains that it was his custom to make entries of delinquent taxes collected in the back part of his cash book in which he kept the entries of current taxes, leaving a sufficient space between them; and that this was done in order to prevent confusion in his accounts. He explains that his stub book of receipts issued is art ample check on the entries made in the cash book, and that access to it can always be had for the purpose of the detection of errors or omissions therein.” 15 So. Rep. 635.

*292What are the conclusions that are to be drawn from the admissions-of plaintiff’s brief — the conclusion of the court on the whole case, and the disposition made by the opinion of the two charges that are-insisted upon in the argument on this application?

Simplified, the seventeenth charge is that the respondent made-collections of taxes from the railroad companies in the latter part of December, 1892, and failed to pay the same into the parish treasury until March, 1893, notwithstanding tax settlements were made with the parish between those dates; and the nineteenth is that he failed to make proper entries in his cash book of the aforesaid collections-“at the time of payment.”

But the facts are — as stated in the above quoted extracts from our opinion — that the amounts collected of the railroad companies were treated as delinquent taxes of 1892, and, as such, entries thereof were made in the baek portion of his cash book of 1893, according to his custom.

That these amounts not having been carried into the settlements that were intermediately made, the attention of the respondent was attracted to the omission while he and the parish treasurer were engaged in checking up (the respondent’s) stub book.”

That as soon as his attention was called to this omission, entries were made in the cash book as of dates of payment, a supplemental statement was prepared, a computation of the interest made and the principal and the interest turned over to the parish treasurer.

That subsequently the respondent tendered to the parish treasurer a full settlement of all delinquent taxes he had collected between October, 1892, and April, 1893, but the latter declined it in pursuance of the instructions of the district attorney, and in consequence of such declination the respondent failed to secure a final settlement of his accounts until July, 1893.

It is apparent that this failure to promptly pay over the amounts collected from the railroad companies was a solitary, isolated instance. That in all likelihood the failure to carry these amounts into the accounts of January and February, 1893, was occasioned by the fact that being delinquent taxes the entries of them in the back portion of the cash book were overlooked, and that on making a comparison between the stub book and cash book the oversight attracted the attention of the respondent and the parish treasurer and caused its immediate correction.

*293Resting our present decision upon the points indicated, can there be a doubt as to the accuracy of the statement of our opinion “ that the case of the relator is, that the defendant, as sheriff and tax collector, has been guilty of a technical disregard of the rules and regu-Jations specified in the tax statutes?” We think not.

The theory of our opinion is that the tax statutes must be examined for the purpose of ascertaining what duties are imposed upon tax collectors, and, necessarily, such statutes must be consulted for ■the purpose of ascertaining what are the corresponding penalties to 'be inflicted for the violation thereof.

But, assuming that our opinion was in this respect erroneous, and ■that we can and must go outside of the statutes to find an interpretation of the aets and conduct of the respondent, what is the result?

The acts of the respondent were not criminal in character or wrong in themselves. They do not evidence an improper use or disposition of the fund's he had collected. They do not disclose a ■customary and habitual delinquency, or default in making settlements. They do not disclose any injury to have been suffered by either the State or parish by the delay in making settlements.

His conduct does not evince a wilful disregard of the law governing the duties of tax collectors, but an accidental omission in the correct and timely performance of them. It attests a perfect willingness to make immediate correction of his errors as soon as his attention was attracted to them. It shows that he kept his cash book so as to keep delinquent taxes separated from current taxes, and if this was not the legal and proper way same should have been kept the fault was one of accident and not of intention on the part of the respondent.

Taken all in all, is there discoverable in the acts or conduct of the respondent any evidence of either misfeasance or non-feasance out-ride and independent of penalties denounced in the tax statutes?

I can discover none.

In State ex rel. Whitaker vs. Adams, 46 An. 830, we had occasion to critically and carefully examine the articles of the Constitution governing removal proceedings, and in the course of our opinion we . said:

“ What were the object and purpose of this extraordinary grant of exceptional power to the judiciary? In our opinion it was to furnish -a guard and a protection against the unjustifiable continuance in *294office of incompetent and unworthy officers, by giving to the people, acting directly in their own right, a special remedy to which they could themselves have free recourse, independently of the official action of others. Without this article the people would have to rely entirely for relief upon the Governor, or General Assembly, or the municipal authorities, who, no matter how great the' occasion or cause for action might be, would be free to act or not as they thought necessary.”

And that such is the object and purpose of “this extraordinary grant of exceptional power ” I now affirm; that is to say, it was intended as “ a protection against the unjustifiable continuance in office of incompetent and unworthy officers.” But this record does not disclose either the ineompeteney or unworthiness of the respondent in the sense of our opinion in that case, or of the instant case; and hence there is no cause shown for his removal.

And we understand that the plaintiff’s counsel is committed to this theory, because, in the course of their argument on this, the nineteenth charge, they state: “We do contend that if the evidence shows flagrant violations of this provision the defendant should be removed from office.” 15 So. Rep. 634.

The present opinion of the court neither purports to deal with any particular charge of the petition, nor does it proceed upon the lines of the application for rehearing.

It purports to deal, in a general way, with a variety of isolated facts, without reference to method or order, which have in my opinion as much pertinency to charges which were specifically abandoned at the argument as to those that were insisted upon in argument and decided by the court.

But aside from those details we have the following circumstances in respondent’s favor, viz.:

1. That he was twice acquitted by juries of his parish of the same issues we have before us.

2. That there was an unanimous decision of this court in his favor in May of 1894, and ever since that time the case has been pending on this application.

3. Since the case was decided, the Legislature convened and adjourned, but during its session an act was passed directing the treasurer to refund to the respondent the sum of one hundred and seventeen dollars as having been “ erroneously paid to the State in the *295settlement of licenses of 1892,” (Act 184 of 1894) the discussion of which is the pivotal point in the present opinion of the court.

4. That at the time the original opinion herein was rendered a like judgment was rendered in favor of the respondent in State ex rel. O. D. Billon vs. A. L. Bourgeois (ante p. 184), sheriff of the parish of St. James, and there was a like application for a rehearing made therein which has been suspended until this time, an opinion in which has this day been handed down, refusing a rehearing and maintaining him in office.

In my opinion the reasoning and conclusions of the court in that ease are conclusively in favor of respondent in this case. On the theory of our opinion in that case there is no aggravation for any of the charges against the respondent in this ease. He has not been found guilty of fraud, or wrong-doing. He has not been shown guilty of the violation of a single provision of the revenue laws, wherein his duties are enumerated and defined, and wherein specific penalties are imposed for the violation thereof, and the violation of which is made the very foundation and groundwork of all the charges against him in plaintiff’s petition.

He has been found guilty, and is to be removed from office without any precept of law — statutory or constitutional, criminal or civil, outside of the revenue law — being assigned as that in which the duties violated have been pointed out as justifying the judgment rendered against him.

For the reasons assigned in the unanimous opinion of the court in the Bourgeois ease, as well as those assigned in the original opinion in this case (see 15 So. Rep., p. 626), I still adhere to that opinion as a correct exposition of the law and the facts of this ease, and dissent from the present opinion of the court.