
    No. 7669.
    Court of Appeal, Parish of Orleans.
    State Ex Rel George Seth Guion, District Attorney, -vs- Frank Chauvin, Parish Treasurer.
   Dlnkelspiel, J.

This notion inspires questions of law alone.

The Relator sets forth that he Is the Distriot Attorney for the 37th. Judiolal Distriot Court for the Parishes ~'vs>'hf Assension, Assumption and St. James. That in addition to 1 _ the duties derolring upon him In the prosecution of all criminal oases arising in said 37th. Judiolal Distriot, he by virtue of his said offloe as District Attorney is«also the legil advisor of seven public boards and corporations; that in the dlsoharge of his duties he has rendered and will continue to render valuable servioes for which if compensated otherwise than through and by means of the contract period refered to he would reoeive and be paid an amount pargely In exoess of that provided for In said oontraot. He further shows, that in said offlolal oapaoity of Dis-triot Attorney In and for the Parish of St. James he is the holder and owner of three oertaln warrants Numbered 4668, 4681 and 4738, the same having been exeouted and given Siren respectively of Haroh, April and Hay 1919, eaoh for the sum of $63*50; that the said narrante are due to him for his salary as District Attorney for the months of February, ttaroh and April 1919; that said warrants are counter -signed by the Seoretary of the Polios Jury of the Parish of St. James, and under their tenor the Seoretary of the Folios Jury of the Parish of St. James is directed to pay to the order of Relator the aforesaid sums due him as aforesaid and he annexes the warrants for certainty of description.

He further alleges that said warrants were orders issued to him as Distriot Attorney by the said Police Jury for the Parish of St. James in part .payment of his salary as set forth in said warrants and under the oontraot duly entered into between Relator as Distriot Attorney and said Polloe Jury, under which oontraot the said Police Jury bound and obligated itself to pay to your Relator the fixed and determfc ined sum of $750.00, per annum in full compensation for his serrines and expenses as Distriot Attorney in lieu of expenses, fees, commissions oto.

Relator further alleges, that said oontraot was entered into in aooordanoe with the laws and statutes of Louisiana, speol -ally Seo. 4, of the Aot of the General Assembly of the State of Louisiana of the Extra Session of 187?, being Aot 30 of said Extra Session, and under full foroe and effect and in every way binding upon your Relator and said Polioe Jury.

He alleges further, that for many years prior to his eleotion and qualification as Distriot Attorney the Police Juries of the several Parishes composing the 37th. Judiolal Distriot had availed themselves of the advantages contemplated and provided by Sec. 4 of the Aot No. 30 of 1877 by entering into contracts with the Distriot Attorneys of said distriot and they continued said oontraots with Relator, and agreed to enter into and did enter into said oontraots as had been dona by them with the predecessors of Relator whereby the fees and commissions earned and the expenses inourred by them should be paid to then by contract# entered into with Police Juries.

That on* the 6th. of May, 1919, Relator through his Attorneys presented said three warrants or orders to Frank Chauvin, Treasurer of the Parish of St. James for payment and that payment was refused by said offioial, on the ground as written by him on the baok of said warrant or warrants, 'that he was advised by the Supervisor of Publlo Aocounts of the State of Louisiana not to pay sane.

That said Treasurer had ample funds in the Treasury with which to pay said warrants of Relator, but declined doing so for the reason stated, and therefore,Relator, concluded with a prayer, that an alternative writ of mandamus issue herein direoted ,to said Frank Ohauvln, Treasurer for the Parish of St. James, ordering him to pay to Relator the three warrants or orders herein declared upon and attaohed hereto at onoe or show cause to the contrary.

The petition is sworn to and the order issued on the 17th. of May, 1919 and the alternative writ of mandamus was fixed for trial on the 4th. of June, 1919.

Ohauvln, Treasurer of the Parish of St. James and Respondent in this oase for answer to the alternative writ of mandamus, and also for answer to Relator's petition to show oause why the writ should not issue and why Relator’s suit should be admits, dismissed etc., admix that Relator under the law is made the Attorney of the different boards therein named, situated in the Parish as stated, but denies, that in representing rapid Boards, Relator was paid the fees or commissions allowud by law that the amount received by him therefor would fes greater than that whloh he reoeived under the oontraot shioh he now seeks to enforoej denies further that said contract was entered into in aooordanoe with the laws and ntrii”,, / of the State of Louisiana, and whilst it say hare been enters! into presuant to Seotion 4, of Aot, 130, of the Extra Session of 1877; denies that said aot was in full foroe and sffeot and oould hare serred the basis of said oontraot at the tiae the saae was entered into, hut arers on the oontrary that the statute abov* sited at the tiae said oontraot was watered into had been superoeeded by Artlols 135 of the Constitution whloh limits the fees of District Attorneys to such as aay be fixed by statute under the liaitatlon of said artlols, and that in aooordanoe with said provision the Legislature passed Aot No. 96 of 1880, Seotion 3 whloh fixes his fees in wxtgtm-atxsattsrs oriminal matters and Seotion 5 in ol^jfl casos and the fees thus fixed oannot be changed, altered or abrogated by agreement and the oontraot herein pleaded is null? void and of no effect; he denies further the doduotions of law and equity drawn from the facts thus alleged, and particularly the doduotions under Artiole 10 of the petition by whloh it is alleged and affirmed that it was the ministerial duty of Respondent to honor and pay the warrants as presented to him as alleged* On the oontrary, he avers that it was his plain duty not to honor and pay said warrants in view of the instructions given him by the Supervisor of Publlo Aooounts, and therefore he prayed that the alternative writ of mandtus--us heretofore Issued be recalled; that the pre-eaptory mandamus prayed for be denied; that Relators demand be rebooted, and for general and equitable relief*

The answer is sworn to by the Attorney General of Louisiana* Under the Constitution of Louisiana of 1888 and the various subsequent aots of the legislature inoluding the extra session of 1877, fees and smolumyants, not only of Distrlot Attorneys but of Lawyers seleoted by the various boards were permissible and deoisions oannot be found to alter or vary the effeot them given, but under the Constitution of 1879 and 1898, Art* 134, road»: "Thor# «hall be a Diatriot Attorney fox eaoh judicial diatriot is tha State, who ahall ha alootad by tha qualified «ata»» electora of tha jadloial diatriot at the same tiaa and for tha aaaa.taxa aa, la provided in Artiole 109 for diatriot judges. Ha ahall raoelva a aalary of one thoueand dollara pas annua, payable monthly on hie own warrant. He ahall ba an actual raaldent of the diatriot and a lioenaed Attorney in thla State.

He ahall aleo raoeive fees; but no faaa ahall he allowed in Orlainal oaaea exoept on oonriotiona whioh faea ahall not ezoaed five dollars in oaaa of a misdemeanor."

Tha Oonetitutlon of 1913 follows substantially in identloa language. The Aot Ho. 96 of 1880 miii^ilaiiiialaVtlt Artiole 134 of tha Constitution of 1879. The aot 30, of the Extra V Sesalon of 1877, authorising Polioe Juxlos to oontraot for fixed sums of money with those offioials who reoaive fees under existing laws in compensation for servioes did not apply to Diatriot Attorneys who are State and lot Pariah offloers.

The question presented is, did the Polioe Jury of the Parish of St. Jaaes have the legal right under the Constitution and the Aot referred to to go beyond the fixed salary allowed to the District Attorney together with fees in oases of oonviotlon only. We think not. The law is positive and oannot be ohanged under any oirouastanoes by any Aot of the Legislature.

The Supreme Court of our State, in the oaae of State Ex Ral Broussard, Diatriot Attornsy-vs-Henderson, Sheriff, to be f&und in Volumn 130, La. Reports, Chief Justice honroa, dealing with the matter in hand in the syllabua, headed Diatriot Attorneys oompsnsatlon, says; "The purpose of Aot Ho. 96, p.133, of 1880, was to deal with the whole subject of the duties and oompsnsatlon of diatriot attorneys, and, iM^ajqjhore may have been some provisions of the ten exls--tin* la» whioh aaoapad iba it» operation, it is so modified and euperoeeded that la» aa to preolude any recovery by the dlatriot attorneys of the one-fifth part of the fines imposed (after deduoting the ooaaisslons of the sheriff) in addition to the fee provided by Section 3 of said act".

And again: * Artloles 135 and 180 of the Constitution of 1898, whether taken seperately or together, are not susoepta-ble of the construction that they Intend to alio» distrlot attorneys to oolleot ooaaisslons, as contradistinguished froa froa fees, or fees, save as provided by the Constitution itself.*

And at page 543 in the body of the decision the Court goes on to say: *Applying this rule to the instant oaae,we are of opinion that the purpose of Aot Ho. 96 of 1880, »as to deal with the »hdle subjeot of the duties and compensation of distrlot attorneys, and that, whilst there may have been soae provision of the existing law whioh ssoaped Xhaxaar its operation, it is so aodlfled or superoseded those upon whioh Relator relies as to preclude his recovery upon the olaia whioh he here sets up.*

In the case of State Xx Rel Bourg, District Attorney-vs-Uorrero, Distrlot Attorney, to be found in 133 La. Reports, and whioh was more in the nature of a orlainal prosecution, amongst other things the Court says: 'Tor many years, and in aany Parishes of this State, the polios juries have Iatxapx interpreted the law under whioh they exerolse their powers as authorising them to enter into contracts with the ft distrlot attorneys for the payment to those offloers of salaries, in lieu of the fees allowed by law for oonvlctlons, and, suoh interpretation having been adopted and aoted upon, by the polloe juries of the Parishes oontltutlng, and the district attorneys of, the Twenty- Eighth Judicial Distrlot , in good faith, the reoeipt of the Mtvr salary so agreed on furnishes no basis for the oharge, X brought against said distrlot attorney, of sntortion in offlos*.

opinion stated the la» of the oase in-tide State when at Pace 4, he ears: * The rules of law relative to contracts do not apply to the official relation. The power to create a puhllo off loo, to define Its duties, and to fie Its oo ripens at ion is essentially governmental, and there are no prlnolft pies more firmly established than that where no compensation is provided by law, none is due, and that the compensation as fixed by la», may not bs ohanged by agreement* Contracts attempted to be nade which provide for compensation different .from that presoribed by la» are void as against publio policy. Qyc. Tol. 39, p. 1435. *

and the authorities cited.

It is therefore ordered, adjudged and deoreed, that the writ of mandamus mads peremptory by the District Court be reversed, annulled and set aside, that this writ be refused and Delator» is denied with oosts.

On Application for Rehearing.

Tha brlaf forte rehearlng.has not convinced ua that wo erred In arriving tooths concluslon that Act 30 of 1S77, Section 4, p. 47 Extra 3aaslon had been rapaalad,1 as far as tha District Attorney ni oonoemad, by Articles 124 of tha Constitution of 1879 and 125 of the Constitutions of 1898 and 1913, and by Act 96 of 1880 Section 3 p. 122. Tha oasa of Otate ax ral Barro* vs. Treasurer, 30 A., 518 rallad upon by relator was decided in ¡íaroh 1878 under the Constitution of 1868. Thera was no law at that tima prohibiting a.oontraot with tha Sheriff for his compensation.

Tha Court said,on page 516, In speaking of Aot 30 of 1877:

'Read In connection with tha other statutes on the sama subject matter and with the general law of contracts, we think a fair Interpretation of this statute Is that It enabled the parishes to make contracts for offloara for specific sums in lien of teas of office a. o ".

'.!i)t Binco than tha Constitutions of 1879 and 1898 have been adopted, and our Interpretation of them is that suoh contracts, t as Sí»r ao District Attorneys are oonoemad, are prohibited by \ their letter and spirit.

But the relator calls our attention to the cases In 11 A., 673, 41 A., 156, and 47 A., 1679 wherein it was decided that neither a State Treasurer, nor a mayor, nor a ^tate Auditor can question the constitutionality of a law specifying their particular duties. The existence of the law attempted to oe enforced in those casee wae not denied; their legality alone whs contested. But in the case at bar the relator 3eoka the execution of a contract made by him with the Police Jury by virtue of Act 30 of 1877. The defence of the Treasurer ia, not that the act of 1877 ia unconstitutional, out that it has been r«p*al*d, as to relator. w* h«y* so held, and we oanaot a** ho* It oan be the legal duty of th* Trdwwwer to pay a oíala basad upon a lav whloh has peail repealed."

In th* 14th. A. p. 227, th* Court aald*

•If upon th* fase of the warrant. It appear* that It Is drawn for a consideration for whloh th* law has mad* no appropriation, then h* aust rsfus* t* pay it*.

Ibis languag* was approval in State *x r*l Barro*, 30nA., 817. Th* Court said:

"Th* duty of ths Parish Treasurer to make th* registry of alalias whloh hav* been allowsd by th* proper author* ltlas is olear and Imperative under th* statute; but as was very properly held in th* oas*s Just olted. It would b* other«is* If th* oertlfioat* of th* Clerk and Judge should show upon Its faoa,-to whloh w* will add. If th* aaeount to whloh th*y war* appended should ah** * that they wars not «1 thin the law Co*,

and tha Court refuoed to Issue the mandamus In favor of th* Sheriff for 'serving road notloos and for notloas to jurors and nlleege".

In Stats ex rel Houston 30 A., 82, where -th* la* aad* It the duty of the City to pay the Sheriff's See* upon th* approval of th* Judge and Clerk, th* Court refused to aandsaus th* City Treasurer to pay hie approved bill th* oorreotn*** of whloh th* City disputed.

It 1* therefor* ordered that the rehearing be refused.

December 8th, 1919.  