
    NO. 7665.
    Mrs. Sadie G. Henderson Vs Frank T. Mooney, Superintendent of Police.
    State of Louisiana. Court of Appeal Parish Of Orleans.
   oímos.

By his Honor

John St. Paul.

This is an appeal from a judgment dismissing a rule to tax the costs horain against the defendant individually. The issue involved is whether a publio officer he individually liable, as of course, for the costs inourred by the successful adverse party in a suit directed against him in his official oapaoity.

X.

The main case was this; Plaintiff*s automobile, whilst in the temporary possession of aithird person, came fin some way not shown by the reoord) into the hands of the police department of the city of Mew Orleans; of whloh defendant is the active executive head.

When plaintiff, who resides out of the city, learnt of thlB, she mtSae at once to demand her property. But the Superintendent of polioe declined to deliver the oar on plaintiffs request, unless she produced a bill of sale recognizing her as the owner."

Apparently pláintiff had not with her,at the time, her bill of sale; for she afterwards sent it to her attorney. Whether or not this bill of sale was ever shown to the defendant, ot any further demand for the oar was ever made upon him, does not appear; but this plaintiff brought^suit and sequestered the car, annexing the bill of sale to the petition. The superintendent made no defense, and plaintiff had Judgment by default. Thereupon this rule to tax the costs against "Frank I. Mooney, defendant" followed.

II.

That the "Superintendent of Polioe" of the City of New Orleans is a publio officer; that the Police Department of the city of New Orleans is a "governmental agenoy"; that publio officers are amenitble to the laws and answerable to the eourty, individually end officially; are all propositions whioh are equally undisputed and indisputable.

Bat it seems equally troa in la*, and consistent with raaoon, that aotlona to oompal or restrain a public officer in his official ha aota fi.e. aots which can perform only by the actual power possessed by him through his tenure of the office) should be directed against him, not individually but in his official capacity; and certainly that is the common practice.

III.

Be that as it may, this suit was brought in striot conformity to the common practice. The caption fast there by plaintiff) names as the defendant "Frank T. liooney, Superintendent of Police:" the declaration, prayer, writ and Judgment are all directed against the same "superintendent of polioe;" the individual, Frank T. liooney, figures throughout only as the embodiment of the offlos whloh he holds; because "governmental agencies," as quasi-corporations, are distinct from the persona who execute them, and can function only through natural persons.

Had Frank T. liooney died, resigned or been removed or otherwise cdrÍLd-disbaied, pending this suit, not his heirs or personal representatives but his suooessor in office, would have remained in possession of the oar and beoome answerable to the court for any failure to obey its mandate. This suit, the^, was against the officer, not the individual.

IT.

That publio officers (excepting the (Jovernor, or members of the Seneral Assembly, and Judges, for reasons of high publio policy) are answerable to individuals for the damages oaused them ny the misuse of their power, is again indisputable; and it would seem reasonable that those damages should Include, among other itemB of loss, the costs incurred in the suooeBBful prossoution of suits brought against them in their official capacity and not otherwise recoverable.

But the grounds of action, and the relief obtainable against the individual, are In the very nature of things very different iron those against the offioer. An action lies against the officer merely because he is wrong, and regardless of his intentions good or bad; but against the individual only when he is wilfully wron£. The offioer is commanded to act or not to aot, thus and so, as the law may direct; but the individual is mulcted of money with whioh to make the injured party whole. In this connnection see Aot 170 of 1818; Seotion 24, par. 5, page 060; and Section 86, , par 2, page 061, in fine.

V.

Whether or not an offioer is liable officially (i.e. out of the publio funds in his oontrol, if any) in suits in whioh the officer is oast, is a matter whioh we are not oalled upon to investigate. The following cases may perhaps have some bearing on that point, and we note them here merely for future reference, vie, State ex rel Dufard vs Judge, 45 An 1299 (1303); 13 Orleans App 159 (161); State ex rel Lindner vs Tax Collector, 6 Orleans App 345 (347).

But this much we do feel authorized to hold, viz, that a public offioer, sued and oast in his official capacity is not individually Háble as of opurse, for the oosts of such suit.

To hold otherwise, would be to hold in effect, that a publio officer who refuses to oomply with any demand whatever made upon him as to the oonduot of his offioe, does so at his own risk and peril, whatever may be his sinoere belief as to his duty in the premises. And sinoe human nature will ever assert itself, it follows that the publio servios must inevitably suffer greatly, by reason of the very natural reluotance of publio offioials to exhaust their substanoe in the payment of costs incurred in unsuooessful (even though bona fide) attempts to defend the publio interests.

We therefore think that the trial judge did not err when he dismissed plaintiff’s rule; and accordingly,

The judgment appealed from is affirmed.  