Opinion
No. 4073.
June 30, 1955. Rehearing Denied October 6, 1955. Writ of Certiorari Denied November 7, 1955.
APPEAL FROM DISTRICT COURT OF THE PARISH OF WASHINGTON, STATE OF LOUISIANA, HONORABLE ROBERT D. JONES, J.
James T. Burns, Dist. Atty., Covington, Bascom D. Talley, Jr., Bogalusa, for appellant.
France W. Watts, Jr., Franklinton, for appellee.
Alcus Louis Fornea is the duly elected member of the Police Jury from the Fifth Ward of Washington Parish, Louisiana. He was elected in 1948 and again in 1952. This suit was filed by the State of Louisiana through Jas. T. Burns, District Attorney for the 22nd Judicial District in and for the Parish of Washington, Louisiana, under Article 9, § 6 of the Constitution of Louisiana, LSA and LSA-R.S. 14:140, known as the "Public Fraud Act."
At the request of the defendant police juror, trial was had by jury which resulted in a verdict for the defendant, after which no motion for new trial was requested of the District Judge, and accordingly judgment was signed by the lower court in accordance with the verdict of the jury, and relator has appealed.
Counsel for defendant has filed a motion to dismiss the appeal on the ground that it was applied for "by motion and/or petition in the District Court (Twenty-second Judicial District Court, State of Louisiana, in and for the Parish of Washington) at a term subsequent to that at which the judgment was rendered, read and signed, and that citation of appeal was neither issued or served, as will be reflected by the record, * * *".
This case was tried and the judgment from which this appeal has been taken was read and signed in the Twenty-second Judicial District Court in open court on the 7th day of February, 1955. On March 7, 1955 appellant filed a motion in open court for a devolutive appeal and was granted an order making the appeal returnable to this court on April 18, 1955.
Counsel for defendant cites and relies upon the case of Haydel v. Major, La.App., reported in 19 So.2d 628. This case shows that the judgment therein was signed at a subsequent and different term of court from the one in which it was rendered. The judgment was signed on February 2, 1943, and on January 7, 1944, which was clearly a subsequent term of Court, an appeal was requested and granted without any prayer or order for citation.
In the present case the appeal was granted by motion in open court at the same term of court in which judgment was rendered, which did not require an order or service of citation. Under Article 7, § 43 of the Constitution, District Courts, except the Parish of Orleans, "shall hold continuous sessions during ten months of the year." The two vacation months in the Twenty Second Judicial District Court are July and August or August and September. It was held by the Supreme Court in Ryland v. Harve M. Wheeler Lbr. Co., 146 La. 787, 84 So. 55, that where a district court has set aside August and September for its vacation, it necessarily follows that the time from October to July constitutes a ten months continuous session required by the Constitution, so that the appeal taken in November from a judgment rendered in October was taken during the term in which judgment was rendered and it was properly taken by a motion in open court and without citation of appeal under Code of Practice Article 573. Many other cases could be cited but we deem it unnecessary.
For these reasons the motion to dismiss is hereby overruled.
Counsel for defendant filed a plea of prescription of one year and exception of no cause or right of action in the District Court, all of which were overruled, and on this appeal in his brief he states that while it is his humble opinion that the District Judge erred in overruling the plea of prescription and exception of no cause or right of action, in view of the fact that "the case proceeded to trial on the merits and the Jury was eminently correct in rendering a verdict for the defendant, Fornea, the writer will not burden the Court with an argument of the plea of prescription and the exception of no cause or right of action * * *" The quoted statement of counsel for the defendant is not a definite abandonment of his plea of prescription and exception of no cause or right of action, and even though he did not press the plea and exception in his oral argument, we will, nevertheless, dispose of both.
Article 9, § 1 of the Louisiana Constitution provides:
"All State and district officers, whether elected or appointed, shall be liable to impeachment for high crimes and misdemeanors in office, incompetency, corruption, favoritism, extortion, or oppression in office, or for gross misconduct, or habitual drunkenness."
Article 9, § 6, pertinent to the case under consideration, reads in part as follows:
"For any of the causes enumerated in Section 1 hereof, any officer, whether state, district, parochial, or of a ward or municipality, except the Governor, Lieutenant-Governor, and judges of the courts of record, may be removed by judgment of the district court of his domicile. The Attorney General, or district attorney may, in his discretion, institute such suit, and shall do so (except when the suit is to be brought against himself) on the written request, specifying the charges, of twenty-five citizens and taxpayers, or of the governor, in the case of state, district, parochial or municipal officers, and of ten resident citizens and taxpayers in the case of ward officers. * * *"
Another basis of the present suit is found in LSA-R.S. 14:140 which is as follows:
"Public contract fraud is committed:
"(1) When any public officer or public employee shall use his power or position as such officer or employee to secure any expenditure of public funds to himself, or to any partnership of which he is a member, or to any corporation of which he is an officer, stockholder or director; or
"(2) When any member of any public board, body, or commission charged with the custody, control or expenditure of any public funds votes for or uses his influence to secure any expenditure of such public funds to himself, or to any partnership of which he is a member or to any corporation of which he is an officer, director, or stockholder.
"The fact that an expenditure has been made to any party named in this article, or to any partnership of which he is a member, or to any corporation of which he is an officer, stockholder or director, shall be presumptive evidence that such person has used his power, position or influence to secure such expenditure.
"Whoever commits the crime of public contract fraud shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than two years, or both."
Under the head of "General Comment" following LSA-R.S. 14:140 we find the following:
"The article limits the crime of 'public contract fraud' to cases in which the officer does some affirmative act (such as voting or using his influence) in order to secure the adoption of the contract in which he has an interest. The affirmative act or influencing by the officer is the gravamen of the offense. Any attempt to further define the offense in terms of the 'extent' of interest of the offender did not appear practicable.
"'Any expenditure of public funds':
"The words 'any expenditure of public funds' are used in the section to mean any spending of public money. This broad terminology was used because Chief Justice O'Niell in his concurring opinion in State v. Abernathy, supra [ 194 La. 559, 194 So. 19], held that the words 'contract for the performance of work or the furnishing of labor or materials,' as used in the former statute, had reference only to the construction of some public work or public building and the furnishing of building materials therefor.
"'Presumptive' evidence of influence:
"The third paragraph was added upon recommendation of the council. It was felt that, although the mere existence of an interest should not be per se criminal, in such cases the official should be required to explain the transaction and show that he did not use his influence to secure the expenditure to himself or to his firm."
Relator makes the following charges in his petition:
"III. Your petitioner further shows, that based upon information furnished him, that the defendant, Alcus Louis Fornea has, during the entire time that he has held the office of Police Juror of the Fifth Ward of Washington Parish, Louisiana, all during his present term which began in the month of June, 1952, and particularly on the dates in the manner hereinafter set forth, been guilty of violating Louisiana Revised Statutes 14:140, a misdemeanor under the laws of this State, in that, he has persistently, repeatedly and continuously, used his power and position as Police Juror of the Fifth Ward of Washington Parish, Louisiana, to secure public funds belonging to the Police Jury of Washington Parish, Louisiana, and/or Washington Parish, Louisiana, for himself or for partnerships of which he was and is a member.
"IV. That Fornea Bros. is a commercial partnership, of which defendant, Alcus Louis Fornea is an active and participating partner.
"V. That Fornea Sand and Gravel Company is a commercial partnership of which defendant, Alcus Louis Fornea is likewise an active and participating partner.
"VI. That Fornea Nash Motors is entirely or principally owned by defendant, Alcus Louis Fornea and his wife, and they alone have power and authority to sign checks for the withdrawal of funds deposited to the account of said Fornea Nash Motors in Angie Branch of the Washington Bank and Trust Company.
"VII. That the Washington Parish Police Jury operates and functions under a system commonly referred to as 'the Ward system', by and under which, each Police Juror has sole, complete and final authority to make purchases of materials to be used in his Ward and exclusive discretion in designating who will perform other required services. In carrying out this practice, no bills or statements for materials purchased or services rendered can be approved by the finance committee and ultimately by the Police Jury as a whole, unless they have first been approved in writing, by the individual Police Juror himself. The affirmative action of the individual Ward Police Juror is the prime requisite in initiating and consumating the purchase and final payments of all materials in each Ward.
"VIII. Petitioner now shows, that acting under the above system and practice, defendant did use the unlimited power and position of his office as Police Juror of the Fifth Ward, Washington Parish, Louisiana, to secure said public funds, by authorizing the purchase and by approving the payment of the following materials, sold by the following partnerships of which defendant was a member to the Police Jury, Washington Parish, Louisiana, viz.:
Partnership selling Type of Material Material ------------------- --------
Fornea Bros. Lumber Fornea Bros. Lumber Fornea Bros. Lumber Fornea Sand Gravel Co. Gravel Fornea Bros. Lumber Fornea Bros. Lumber Fornea Bros. Lumber Fornea Bros. Lumber Fornea Sand Gravel Co. Gravel Fornea Sand Gravel Co. Gravel Fornea Bros. Lumber Fornea Sand Gravel Co. Gravel Fornea Bros. Lumber
Partnership selling Paid by check of Washington Material Parish Police Jury ------------------- --------------------------- Date Amount ---- ------
Fornea Bros. Oct. 7, 1952 $379.94 Fornea Bros. Oct. 7, 1952 248.76 Fornea Bros. Oct. 7, 1952 269.87 Fornea Sand Gravel Co. Oct. 14, 1952 195.00 Fornea Bros. Dec. 10, 1952 272.34 Fornea Bros. Dec. 10, 1952 121.02 Fornea Bros. Jan. 14, 1953 247.26 Fornea Bros. Jan. 14, 1953 376.90 Fornea Sand Gravel Co. Feb. 11, 1953 300.00 Fornea Sand Gravel Co. March 11, 1953 350.00 Fornea Bros. June 10, 1953 315.72 Fornea Sand Gravel Co. June 10, 1953 170.00 Fornea Bros. Sept. 9, 1953 94.06
"IX. That as hereinabove set forth, the above sales of materials are specifically set forth for the purpose of illustrating the practice followed by defendant since his present term of office began in June, 1952, and are not exclusive, all as will be brought out and shown on the trial of this case."
Accepting as true the allegations of the petition above quoted, and applying the law, there is no doubt but that the petition states a cause of action.
As to the plea of prescription, in the case of Stanley v. Jones, 197 So. 627, 2 So.2d 45, 48, the Supreme Court of the State of Louisiana reaffirmed a previous holding to the effect that no prescription protects public officers in suits for removal as in the case at bar, and stated:
"Defendant filed an exception of no cause or right of action, the first ground of which is leveled at the offenses it is alleged he committed prior to his present term of office. Defendant contends that these offenses which are set forth in articles 16 to 22 of the petition, both inclusive, do not furnish a cause for his removal from office.
"The petition, in paragraph 2, shows that the defendant served a term as judge of the Tenth Judicial District Court for the period of 1920 to 1924. He was again elected to the office for the term beginning January 1, 1931, and was re-elected in 1936 to hold the office until 1943. The defendant has served a six-year term beginning January 1, 1931, and is at present serving another term of six years to run through the year 1942.
"This exception is in effect that the scope of the hearing should be limited to the offenses which the petition alleges were committed by defendant since his last election to the office in the month of November, 1936.
* * * * * *
"As shown in the annotation in question, 17 A.L.R. at page 285, although there are many cases holding that misconduct in prior terms of office is not ground for removal of a public officer, there is an equal number of cases to the contrary effect, that such misconduct may constitute ground for removal or impeachment. This state is listed among the states among which the latter rule prevails. And the cases referred to are State ex rel. Attorney General v. Lazarus, 39 La.Ann. 142, 1 So. 361; State [ex rel. Billon] v. Bourgeois, 45 La.Ann. 1350, 14 So. 28; State [ex rel. Perez] v. Whitaker, 116 La. 947, 41 So. 218.
"Those cases arose under Article 196 and 201 of the Constitution of 1879, which articles were embodied almost verbatim in the Constitution of 1921. In State [ex rel. Billon] v. Bourgeois, 45 La.Ann. 1350, 14 So. 28, 30, it was specifically held that acts denounced by Article 196 of the Constitution of 1879, which, with the omission of the words 'for nonfeasance or malfeasance,' is section 1 of Article 9 of the present Constitution, committed in a prior term by any officer who was his own successor, may form the foundation for a suit for removal from office. This holding was repeated in the case of State [ex rel. District Attorney] v. Bourgeois, 47 La.Ann. 184, 16 So. 655. In the first Bourgeois case, after referring to the constitution article, this Court said: 'We must therefore conclude that the articles were intended to remove an unworthy officer while in office, irrespective of the fact whether the act complained of was committed during his first or a subsequent term.' The Court quoted with approval the following statement by the Supreme Court of Nebraska, in the case of State v. Hill, 37 Neb. 80, 55 N.W. 794, 20 L.R.A. 573: 'The fact that the offense occurred in the previous term is immaterial. The object of the impeachment is to remove a corrupt or unworthy officer. If his term has expired, and he is no longer in office, that object is obtained, and the reason for his impeachment no longer exists; but if the offender is still an officer he is amenable to impeachment, although the acts charged were committed in his previous term of the same office.'
"In the second Bourgeois case (47 La.Ann. 184, 16 So. 656), this Court in rejecting a plea of prescription, explained the scope and purpose of the Constitutional articles providing for the impeachment and removal of public officers as follows: 'These articles are in the public interest, to secure purity and efficiency in the administration of public offices. They provide for the removal of dishonest, unfaithful, or inefficient officers, and no prescription protects them while in office. Thus it has been determined that the removal proceedings may be for acts prior to the existing, but embraced within a previous, term of the incumbent,' citing authorities.
"In Allen v. Tufts, 239 Mass. 458, 131 N.E. 573, 576, 132 N.E. 322, 17 A.L.R. 274, the Supreme Judicial District Court for Massachusetts, with Rugg, Chief Justice upholding the rule that misconduct in a former term is ground for removal, expressed a similar view, viz., 'The object of our statute is to purge the public service of an unfit officer. Such unfitness may arise from conduct in an office held continuously although during the term of an earlier election.'
"In State [ex rel. Perez] v. Whitaker, 116 La. 947, 41 So. 218, this Court held, as shown by the syllabus, that 'if an offender is still in office, he may be removed, although the act charged was committed during his previous term of the same office.'
"Defendant relies on State ex rel. Wilkinson v. Hingle, 124 La. 655, 50 So. 616; State v. Young, 137 La. 102, 68 So. 241; State [ex rel. Saint] v. Dowling, 167 La. 907, 120 So. 593, and State [ex rel. Saint] v. Irion, 169 La. 481, 125 So. 567. But they are not appropriate. They are all cases involving contests for office in which the incumbent sought to retain his office on various grounds."
For the reasons assigned the plea of prescription and exception of no cause or right of action were correctly overruled by the lower court.
On The Merits
Defendant in answer denied Articles 3, 4, 5, admitted Article 6, and in answer to Article 7 set forth:
"That defendant Alcus Louis Fornea, denies Article VII of plaintiffs petition but does specifically admit that the Washington Parish Police Jury operates and functions under a system commonly referred to as the Ward System."
Defendant denied Articles 8 and 9.
In the more or less recent case of Strahan v. Fussell, 218 La. 682, 50 So.2d 805, 807, decided by the Supreme Court of Louisiana, the so-called "Ward system" was condemned in the following language:
"We know of no law which authorizes the practice of allocating funds to a particular member of the police jury to be expended in his discretion and as he sees fit, and are of the opinion that it is illegal, as the authority to expend funds and make decisions regarding the maintenance and repair of roads and bridges is vested in the police jury as an entity or public body acting as a whole, and not in the individual members thereof. Consequently the allegation that the defendant was the sole controlling and legal authority in his ward in the expenditure of the funds so allocated and in the maintenance of the roads and bridges is merely a conclusion of law on the part of the pleader, which is incorrect.
"The allocation by the police jury to the defendant of funds to be used in his discretion to repair and maintain roads and bridges was clearly illegal and without authority of law, an illegal act on the part of the body of which he himself was a member. * * *"
While the defendant denied relator's definition under the allegation detailing the effect of the "Ward system" in operation, the evidence unquestionably, and particularly that of Mrs. Mildred K. O'Dell, Secretary of the Washington Parish Police Jury, is conclusive that each police juror has the complete and sole authority to order and purchase material from whomsoever he pleases to be used in his ward, and to hire or fire employees within the ward, and a bill for the purchase price of material or for labor used within the ward must first be approved by the Police Jury member of that ward, then it is passed to the Finance Committee and to the Police Jury as a whole for approval.
The relator has offered in evidence forty-one checks drawn on the Parish Treasurer, Washington Parish, to First State Bank and Trust Company, Bogalusa, La., as well as twenty-one photostatic copies of other checks, the originals of which are not offered in the record, but which photostatic copies were specifically identified as being true copies of the original checks in the possession of the Police Jury. Listed below are the numbers, dates, payees, amounts and endorsements of the original checks and photostatic copies:
Original Checks Number Date Payee Amount Endorsement — ---- ----- ----- ------- ----------- 10812 6/13/51 Fornea's Lumber Co. $275.05 Fornea's Lumber Co. By W.W. Fornea, Partner Louis Fornea 11312 7/24/51 W.W. Fornea 268.68 W.W. Fornea Louis Fornea 11608 8/8/51 Fornea's Lumber Com- 332.05 For Deposit pany Fornea's Lumber Company By Tom Paul Fornea 13704 3/12/52 W.W. Fornea 362.44 W.W. Fornea Louis Fornea 14362 5/14/52 W.W. Fornea 345.03 W.W. Fornea Louis Fornea 14458 5/14/52 Fornea Brothers 341.30 Fornea Brothers By W.W. Fornea (Partner) Louis Fornea 14596 7/9/52 W.W. Fornea 338.10 W.W. Fornea L. Fornea 15224 8/13/52 W.W. Fornea 461.48 W.W. Fornea Louis Fornea 15711 10/7/52 Fornea Bros. 379.94 Fornea Bros. By W.W. Fornea, Partner L. Fornea 15712 10/7/52 Fornea Lumber Company 279.18 Fornea Lumber Company By T.P. Fornea, Partner L. Fornea 15714 10/7/52 Fornea Bros. 248.76 Fornea Bros. By W.W. Fornea, Partner L. Fornea 15715 10/7/52 W.W. Fornea 180.00 W.W. Fornea A. Fornea 15716 10/7/52 Fornea Bros. 269.87 Fornea Bros. By W.W. Fornea, Partner L. Fornea 16046 11/12/52 W.W. Fornea 244.30 W.W. Fornea L. Fornea 16203 12/10/52 Fornea Lumber Company 297.50 Fornea Lumber Company By T.P. Fornea, Partner L. Fornea 16204 12/10/52 Fornea Lumber Company 315.00 Fornea Lumber Company By T.P. Fornea, Partner L. Fornea 16288 12/10/52 Fornea Brothers 272.34 Fornea Brothers By W.W. Fornea, Partner L. Fornea 16345 12/10/52 Fornea Bros. $121.02 Fornea Bros. By W.W. Fornea (Partner) L. Fornea 16719 1/14/53 Fornea Brothers 247.26 Fornea Brothers By W.W. Fornea, Partner 16771 2/11/53 Fornea Lumber Company 533.94 Fornea Lumber Company By J.E. Fornea (Partner) Louis Fornea 16772 2/11/53 Fornea Sand Gravel 300.00 Fornea Sand Gravel By J.N. Fornea (Partner) Louis Fornea 17241 3/11/53 Fornea Sand Gravel 350.00 Fornea Sand Gravel By T.P. Fornea (Partner) L. Fornea 17242 3/11/53 W.W. Fornea 319.08 W.W. Fornea Alcus Fornea 17567 4/8/53 W.W. Fornea 310.98 W.W. Fornea Louis Fornea 17568 4/8/53 Fornea Sand Gravel 160.00 Fornea Sand Gravel Co. By J.N. Fornea Louis Fornea 17751 3/13/53 Fornea Sand Gravel 230.40 Fornea Sand Gravel By T.P. Fornea (Partner) L. Fornea 17983 6/10/53 Fornea Lumber Company 349.92 Fornea Lumber Company By J.E. Fornea (Partner) L. Fornea 17984 6/10/53 Fornea Sand Gravel 170.00 Fornea Sand Gravel By T.P. Fornea, Partner L. Fornea 17985 6/10/53 Fornea Lumber Company 280.75 Fornea Lumber Co. By J.E. Fornea (Partner) L. Fornea 17986 6/10/53 Fornea Bros. 315.72 Fornea Bros. By W.W. Fornea, Partner L. Fornea 18319 7/8/53 Fornea Lumber Company 242.50 Fornea Lumber Co. By T.P. Fornea Louis Fornea 18320 7/8/53 Fornea Lumber Company 130.00 Fornea Lumber Co. By T.P. Fornea (Partner) Louis Fornea 18321 7/8/53 W.W. Fornea 318.61 W.W. Fornea Louis Fornea 18322 7/8/53 Fornea Lumber Company $311.54 Fornea Lumber Co. Tom Paul Fornea 18531 8/29/53 Fornea Sand Gravel 298.00 Fornea Sand Gravel Co. By Tom Fornea, Partner L. Fornea 18541 9/9/53 W.W. Fornea 391.83 W.W. Fornea Louis Fornea 18544 9/9/53 Fornea Brothers 89.44 Fornea Brothers By W.W. Fornea, Partner Alcus Fornea 18545 9/9/53 Fornea Brothers 94.06 Fornea Brothers By W.W. Fornea, Partner L. Fornea 18787 10/14/53 Fornea Sand Gravel 195.00 Fornea Sand Gravel Co. By T.P. Fornea, Partner L. Fornea 18788 10/14/53 Fornea Lumber Company 298.24 Fornea Lumber Co. By T.P. Fornea (Partner) L. Fornea 19920 2/10/54 Johnie Fornea 114.00 Johnie Fornea L. Fornea Photostatic Copies 9833 2/14/51 W.W. Fornea 294.85 W.W. Fornea For Deposit Fornea Bros. 9867 2/14/51 Fornea Brothers 43.98 For Deposit Fornea Brothers By W.W. Fornea 10276 5/11/51 Fornea Brothers 73.50 Fornea Brothers By W.W. Fornea (Partner) W.W. Fornea 10449 5/9/51 Fornea Bros. 48.66 For Deposit Fornea Brothers 10498 5/9/51 W.W. Fornea 99.24 W.W. Fornea For Deposit Fornea Brothers 10566 5/9/51 Fornea Bros. 273.72 For Deposit Fornea Brothers 11862 9/12/51 Fornea Bros. 77.40 Fornea Brothers by W.W. Fornea 12172 10/10/51 W.W. Fornea 130.86 W.W. Fornea For Deposit Fornea Bros. 12181 10/10/51 Fornea Bros. $370.47 For Deposit Fornea Bros. By W.W. Fornea 12184 10/10/51 Fornea Bros. 200.00 For Deposit Fornea Bros. By W.W. Fornea 12778 1/9/52 Fornea Bros. 284.24 For Deposit Fornea Bros. By W.W. Fornea 12905 1/9/52 Fornea Bros. 564.66 For Deposit Fornea Bros. By W.W. Fornea 13428 2/13/52 W.W. Fornea 150.00 W.W. Fornea For Deposit Fornea Bros. 13429 2/13/52 W.W. Fornea 133.08 W.W. Fornea For Deposit Fornea Bros. 13435 2/13/52 R.H. Fornea Lumber 117.11 R.H. Fornea Lumber Company Company By R.H. Fornea, owner For Deposit R.H. Fornea 14001 4/9/52 W.W. Fornea 108 W.W. Fornea For Deposit 14060 4/9/52 Fornea Bros. 276.44 For Deposit Fornea Bros. By W.W. Fornea 16955 2/11/53 W.W. Fornea 266.64 W.W. Fornea 19394 12/9/53 Fornea Bros. 321.75 Fornea Bros. By W.W. Fornea (Partner) For Deposit W.W. Fornea 20168 3/10/54 W.W. Fornea 357.86 W.W. Fornea 20549 5/14/54 W.W. Fornea 392.22 W.W. Fornea It is shown that the defendant's full name was Alcus Louis Fornea, and that he was elected president of the Washington Parish Police Jury in 1952 and in signing the checks as President of the Police Jury his regular signature was "Alcus Fornea".Under the testimony of the defendant, he stated that he was a member of the partnership of Fornea Brothers during the year 1951 and up until March 31, 1952 when he sold out "everything concerning the sawmill, timber, logs, all deeds, all money in the bank," and he received all cement equipment.
W.W. Fornea testified that the partnership of Fornea Brothers of which he and the defendant were the sole partners and owners was dissolved on April 31, 1952. However, this testimony is of little value for this same witness also testified, when personally inspecting and identifying all the checks above shown payable to the order of Fornea Brothers or W.W. Fornea during the year 1951, and specifically denied in each instance that on the date of the issuance of the check that his brother, Alcus Louis Fornea, was a member of the partnership. The two statements can not be reconciled. To say that the defendant was not a member of the partnership in 1951 and then, on cross examination, clearly and without equivocation, testify that the partnership was dissolved on April 31, 1952 is contradictory and must therefore depend on other proof which will be hereinafter discussed.
Under defendant's sworn testimony that he was a member of the Fornea Brothers partnership during the year 1951 and part of 1952 and under the method of operation of the "Ward system", defendant was the sole judge of what and from whom he should purchase materials and solely responsible for the purchase of materials from concerns in which he was interested, this not only constituted a prima facie case but was full and complete proof that he had committed Public Contract Fraud as defined by LSA-R.S. 14:140. He used his power and position as a Police Jury member of Ward 5 to secure the expenditure of public funds, which means the expenditure of public money, to the partnership of Fornea Brothers of which he was a member.
Check No. 11312, supra, was for bridge lumber for Ward 5 and, although the bill head upon which the bill was sent to the Police Jury had "Fornea Brothers", which is printed in large black letters, scratched out and above that written "W.W. Fornea", there is absolutely no explanation by the defendant or any other witness why this was done, for the evidence is conclusive that on that date the defendant was a member of the partnership of Fornea Brothers which was engaged in the lumber business. In addition, Mr. W.I. Daniel, manager of the Angie Branch of the Washington Bank Trust Co., testified that Fornea Brothers was a partnership composed of W.W. Fornea and the defendant, and that the defendant, although he signed Police Jury checks as President, "Alcus Fornea", it will be noted endorsed these checks "Louis" or "L." Fornea. Mr. Daniel testified that this check was endorsed by defendant and the defendant received the money. In other words, he endorsed it "W.W. Fornea, Louis Fornea".
We also find check No. 13704, supra, which was for lumber and use of a tractor five days in Ward 5, which was endorsed by "Louis Fornea" and he received the money, according to the positive testimony of Mr. Daniel.
Check No. 10812, supra, issued June 13, 1951, at which time defendant was admittedly a member of Fornea Brothers or Fornea Lumber Company, is made payable to the latter and endorsed as heretofore shown, and Mr. Daniel again testified that the defendant received the money for this check. It might be argued that this check was issued in payment of lumber to be used in the Ninth Ward of Washington Parish, but under the law the fact that defendant was a member of the payee partnership and the check having been completely endorsed by him, and he receiving the money, constituted a prima facie case against defendant, and the only way in which he could extricate himself was by a satisfactory explanation which is absent from this record. The defendant admitted the correctness and truthfulness of Mr. Daniel's testimony.
In addition, we have a photostat of check No. 9867 dated Feb. 14, 1951 payable to Fornea Brothers, at which time defendant was admittedly a member of this partnership, and there is no satisfactory explanation in the record to destroy the prima facie case presented by this check. The same applies to the photostatic copy of Check No. 10276, supra, payable to Fornea Brothers, and photostatic copy of Check No. 10449, supra, dated May 9, 1951 payable to the order of Fornea Brothers. The invoices for these photostatic copies of checks are not in the record and were not photostated, therefore, they could be for material ordered and purchased by the Police Jurors in some other ward rather than the defendant Ward 5. However, the mere fact that the money was paid to the partnership of which defendant was admittedly a member at the time constitutes a prima facie case under the law heretofore quoted, and the defendant has offered no explanation other than for all checks in payment of materials purchased in his ward after March 1952, after which date he testified that he was no longer a partner.
We find in the record the following which constitute prima facie evidence against the defendant: photostat No. 10498, supra, dated May 9, 1951, payable to the order of W.W. Fornea, endorsed "W.W. Fornea" in handwriting most similar to the defendant's, "For Deposit — Fornea Brothers;" photostat No. 10566, supra, dated May 9, 1951, payable to the order of Fornea Brothers, endorsed "For Deposit Fornea Brothers"; photostat No. 11848, supra, dated September 12, 1951 payable to Fornea Brothers; photostat No. 11862, supra, of date Sept. 12, 1951, payable to Fornea Brothers; photostat No. 12172, supra, of date October 10, 1951, payable to the order of W.W. Fornea, endorsed "W.W. Fornea, For Deposit, Fornea Brothers"; photostat No. 12181, supra, dated October 19, 1951 to the order of Fornea Brothers; photostat No. 12184, supra, dated October 10, 1951 the order of Fornea Brothers; No. 12778 dated January 9, 1952, to the order of Fornea Brothers; No. 12905, supra, dated January 9, 1952 payable to the order of Fornea Brothers and endorsed "For Deposit — Fornea Brothers by W.W. Fornea"; No. 13428, supra, dated Feb. 13, 1952 to the order of W.W. Fornea, endorsed "W.W. Fornea, For Deposit, Fornea Brothers."; photostat No. 13429, supra, dated Feb. 13, 1952 to the order of W.W. Fornea, endorsed "W.W. Fornea, For Deposit, Fornea Brothers;" photostat No. 13435 of date Feb. 13, 1952 payable to the order of R.H. Fornea Lumber Co., endorsed "R.H. Fornea Lumber Co. by R.H. Fornea, owner, For Deposit, R.H. Fornea." This last check is completely unexplained in the testimony and is to another Fornea lumber company and, of course, it can not be used without further evidence against the defendant, however, all checks and photostats of checks previously identified and discussed payable to Fornea Brothers or W.W. Fornea during the year 1951 and up to March 31, 1952 under the testimony of the defendant himself were payable to a partnership, or are shown by the endorsement to have been, in fact, for Fornea Brothers and constituted in most instances full proof of relator's petition, and in those cases where the material was purchased for another ward constituted prima facie proof of the charges set forth in relator's petition and in themselves would entitle relator to a judgment as prayed for. The verdict of the jury and the judgment of the court in accordance therewith would be manifestly erroneous even if the proof were limited to funds received during 1951 up until April 1, 1952 by Fornea Brothers and which have previously been discussed in detail.
There is further proof in this record which will now be considered. Mr. Daniel, manager of the Angie branch bank, testified that he was intimately acquainted with all the Fornea brothers who are either seven or nine in number, and that he had in his bank an account of "Fornea Brothers"; that defendant and his brother, W.W. (Weldon) Fornea, were the ones who could write checks on this account.
It will be noted that there are also checks, supra, payable to the order of Fornea Sand and Gravel Company, but Mr. Daniel testified that he had no such account although he had noticed checks payable to this partnership or company.
Mr. Daniel was shown check No. 16772, supra, dated Feb. 11, 1953, payable to Fornea Sand and Gravel Company, endorsed "Fornea Sand and Gravel Company, by J.N. Fornea (Partner) Louis Fornea," and he stated that Louis Fornea, defendant herein, had endorsed that check and received the money. Also presented to Mr. Daniel was check No. 17241 payable to Fornea Sand and Gravel Company of date March 11, 1953 for $350.00, endorsed "Fornea Sand and Gravel by T.P. Fornea (Partner) L. Fornea, the latter being the defendant, and Mr. Daniel stated that this check was endorsed by defendant and the defendant received the money for same. These two checks totalled $650.00 and it is shown on the back of check No. 16772 that it was for hauling clay gravel in Ward 5, and the check was signed by "Alcus Fornea, President" together with the Treasurer of the parish. No. 17241 shows on its back that it is for hauling gravel in Ward, signed by "Alcus Fornea, President". It will be noted that none of the checks listed, supra, were endorsed "Alcus Fornea" but were endorsed "Louis" or "L" Fornea. This remains unexplained by defendant.
The following numbered checks were tendered to Mr. Daniel and he testified that the defendant had endorsed same: No. 17986, supra; No. 18787, supra, made payable to Fornea Sand and Gravel Company, and reference to the endorsement will show "Fornea Sand and Gravel Co., by T.P. Fornea," and under the latter's name is written the word "Partner" and the endorsement, "L. Fornea." Mr. Daniel testified with regard to this check that the endorsement "T.P. Fornea" was not in the latter's handwriting, however the endorsement "L. Fornea" was made by the defendant and Mr. Daniel testified that defendant received the money for the check, yet, in the face of all this evidence and in an attempt to prove that he was not a partner in the Fornea Sand and Gravel Company, defendant testified that his brother, Tom Paul Fornea, was the complete owner of the gravel company. Tom Paul Fornea testified that Fornea Sand and Gravel Company was a partnership composed of himself and another brother, J.E. Fornea; Check No. 17986 dated June 10, 1953 payable to Fornea Brothers, endorsed "Fornea Brothers" by "W.W. Fornea — L. Fornea, For Deposit, Fornea Nash Motors." Upon being tendered this check Mr. Daniel testified that the endorsement was made by the defendant and that his motor company, owned by defendant and his wife, received the money upon deposit of the check. This check was for bridge lumber in Ward 5, and the bill was in account with Fornea Brothers.
Let us also examine check No. 18531, supra, dated August 29, 1953, payable to the order of Fornea Sand and Gravel Company, for $298.00, endorsed "Fornea Sand and Gravel Co. by Tom Fornea, Partner" and under this endorsement, "L. Fornea." Mr. Daniel testified that the defendant received the money for this check. We also have Check No. 18787, supra, payable to Fornea Sand and Gravel Company in the sum of $195.00, October 14, 1953, endorsed "Fornea Sand and Gravel Company by T.P. Fornea, Partner" and underneath, "L. Fornea." Defendant received the money.
There were a total of seven checks totalling $1703.00 payable to Fornea Sand and Gravel Company, endorsed by the defendant and for which he received the money. The only explanation offered is that he loaned his brother, Tom Paul Fornea, $2300.00 or $2400.00 to start the gravel company. Tom Paul Fornea's testimony showed an advance of $300.00. This company maintained no bank account, and on the proof in the record relator has shown that the defendant endorsed these checks, received every bit of the money, and under the "Ward system" he was solely responsible for the order and purchase of this material which was used in his ward. In addition, the money received by him from orders and purchases made by him for his ward prior to March 1952 from Fornea Brothers, Fornea Lumber Company or W.W. Fornea, all of which are shown by the evidence to be, in fact, the partnership of Fornea Brothers, was conclusive proof of the necessary facts alleged in relator's petition and required by the law, supra, for a judgment in favor of relator as prayed for.
Without detailing any further, with regard to the remainder of the original checks which were offered in evidence and have been listed heretofore totalling forty-one in number, Mr. Daniel's testimony with regard to each of these checks was that in every instance except one the defendant received the money. Proof of indebtedness and repayment by the brothers to the defendant through these checks falls far short of being satisfactory. Counsel for relator had the checks totalled by the Secretary of the Washington Parish Police Jury, Mrs. O'Dell, which Mr. Daniels identified and stated were endorsed by the defendant and from which the latter received the money, rather than W.W. Fornea, Fornea Brothers, Fornea Lumber Co., or Fornea Sand and Gravel Company to whom they were made payable, and the total sum was $10,981.77.
Furthermore, we have the following checks totalling $1115.89 for which the money was received by the defendant and deposited to the credit of his motor company: Check No. 17983, dated June 10, 1953, for $349.92 payable to Fornea Lumber Co., and completely endorsed by the defendant "For Deposit, Fornea Nash Motors"; No. 17984 dated June 10, 1953, payable to Fornea Sand and Gravel Company, endorsed by the defendant, in the amount of $170.00, "For Deposit, Fornea Nash Motors;" No. 17985, dated June 10, 1953, for $280.75, payable to Fornea Lumber Company, endorsed by the defendant "For Deposit, Fornea Nash Motors"; No. 17986, dated June 10, 1953 for $315.72 payable to Fornea Brothers and endorsed by the defendant "For Deposit — Fornea Nash Motors." These checks were for purchases in defendant's ward and he, therefore, is entirely responsible and had complete authority to purchase or not purchase and he chose to purchase from those partnerships in which the record shows he was at least a partner therein if not the complete owner.
The fact that testimony was offered to the effect that the parish received the materials and labor which were paid for by the checks and photostatic copies of checks introduced in this record is beside the point. The law prohibits a member of a Police Jury from using his power or position as such to secure any expenditure of public funds to himself, or to any partnership of which he is a member, and the fact that an expenditure has been made to any police juror or to any partnership of which he is a member "shall be presumptive evidence that such person has used his power, position or influence to secure such expenditure."
In any parish which follows the so-called "Ward system", specifically declared illegal by the Supreme Court, the individual police juror has sole authority in such position in his ward to purchase from whom he pleases and to spend the funds illegally allocated him under the system as he pleases, and he uses his power and position each time he makes a purchase of materials for his ward. This alone would not subject him to the provisions of LSA-R.S. 14:140, but when he, in addition, orders and purchases from a partnership under which he is a member and thereby secures the expenditure of public funds to himself, he has done that which is prohibited under LSA-R.S. 14:140 and the Constitution, supra, and is subject to removal.
Able counsel for defendant argues that the jurors were all honest, influential, intelligent and reputable citizens of Washington Parish, heard these proceedings and rendered their verdict in favor of defendant, and unless manifest error is shown, the appellate court must affirm the verdict of the jury or the judgment of the lower court, as the case may be. He cited Broussard v. Janin, La.App., 62 So.2d 197; Craton v. Inabnett, La.App., 62 So.2d 129; Debona v. Sanson, La.App., 69 So.2d 590, and Norman v. State, La.App., 69 So.2d 120.
The argument and law cited by counsel are correct, but there are many cases in which the appellate courts of this State have found that the verdict of the jury or the judgment of the lower court was manifestly erroneous and they have reversed same because it is their duty under the law to do so. In reversing the verdict of a jury or a judgment of a lower court, appellate courts are not ipso facto casting any aspersions upon the honesty and integrity of the jury or judge. The evidence in this case overwhelmingly satisfies the requirements of law so as to entitle relator to the relief sought.
In our opinion the verdict of the jury is manifestly erroneous.
It is therefore ordered, adjudged and decreed that there be judgment in favor of relator and against the defendant, Alcus Louis Fornea, removing said Alcus Louis Fornea from office as Police Juror of the Fifth Ward, Washington Parish, Louisiana.
It is further ordered, adjudged and decreed that the defendant pay all costs of court.
Judgment reversed.
I must respectfully dissent.
The majority opinion well and fairly summarizes the evidence in the record. The circumstances giving rise to this removal action are certainly such as justifiably arouse suspicion. Because the explanation of these circumstances may seem ambiguous or improbable, however, it is not necessarily false. The District Court and the jury had the opportunity to see and hear the witnesses, and the jurymen unanimously held the evidence did not prove the misdemeanor charged, and the District Court adopted this verdict as the judgment appealed from.
It may well be that knowing and hearing the evidence of the circumstances of this close-knit family of nine brothers, intermingling in management, banking activities, but not necessarily in the proceeds of several of the none-too-numerous businesses of the Varnado community, they believed the explanation that defendant Fornea, a former President of the Washington Parish Police Jury, had not used his office to secure any expenditure of public funds to his own profit. It should be added that every other member of the police jury testified that Fornea did not influence the police jury to make purchases from the various Fornea concerns, and that there is no question here but that the police jury received the supplies for which it paid.
The banker identifying bank deposits, etc., on behalf of plaintiff admitted on cross-examination that the Fornea brothers interchangeably made the deposits for one another, had authority to endorse and cash checks made out to their brothers, etc.
For it must be remembered that this removal is sought on the ground that Fornea committed a misdemeanor under LSA-R.S. 14:140; and in my belief even in this civil action the State has the burden of proving this offense "beyond a reasonable doubt", LSA-R.S. 15:263, not simply by the preponderance of the evidence. To hold otherwise would permit removal on the ground a public official had allegedly committed a specific misdemeanor, even though there is not sufficient evidence to prove commission of this criminal misdemeanor.
My dissent is dictated by my belief that the verdict of this jury and the judgment of this District Court cannot be reversed unless it is manifestly erroneous. The Constitution apparently permits removal not only on the ground of commission of a crime, but also for such reasons as "incompetency", "favoritism", "oppression in office", "gross misconduct", "extortion", "habitual drunkenness" — relative terms, whose meanings might vary from individual to individual. To me it is particularly appropriate that such charges be tried before a jury of people of the general locality, rather than that determination of whether an official called to his office through the sacred voice of the people is subject to removal, be according to the variable standards of members of the judiciary.
The record reflects that the jury unanimously rendered a verdict for the defendant and rejected the plaintiff's charges against him. As stated by our brothers of the Second Circuit in passing in a civil action upon a jury verdict based on the credibility of witnesses, and accepting the jury's determination, Norman v. State, La.App., 69 So.2d 120, at page 132:
"And, again in Selser v. Revol, 152 La. 447, 93 So. 675, 677, the court said:
"'It is the peculiar province of a jury under the law of this state to pass upon the credibility of witnesses. A jury of the vicinage is presumed to know the witnesses and to be acquainted with their reputations for truth and veracity in the community in which they live. The jury see the witnesses, hear them testify, and are better capacitated to place a just estimate on their evidence than the judges of the Supreme Court on appeal, and their verdict, for these reasons, should not be lightly considered or hastily disturbed (cases cited).
"'On questions of fact involving the credibility of witnesses, the verdict of the jury will not be disturbed unless manifestly erroneous (cases cited).'
* * * * * *
"'The very purpose of a trial by jury is to decide the facts of a case, and we do not feel justified in setting aside the verdict of the jury in this case, where the testimony is conflicting, and the testimony of the plaintiff is sufficient to sustain such verdict, if accepted as credible. The jury has believed the plaintiff's testimony, * * *.'"
Had, for instance, the District Court found that the jury's verdict was manifestly erroneous and set it aside, the defendant would have been entitled to a new trial and verdict by another jury of his peers. For the trial court's power in upsetting the verdict of a jury is limited to ordering a new trial, Article 541, Code of Practice; LSA-R.S. 13:4261; State ex rel. Shreveport Cotton Oil Co. v. Blackman, 110 La. 266, 34 So. 438. Nor may he set aside a verdict of a jury in the same case more than twice, and must accept the third jury verdict therein, LSA-R.S. 13:4160. The able District Court did not set aside the jury verdict ex proprio motu as was his right, but instead signed a judgment based upon this jury verdict and therefore presumably did not find it manifestly erroneous. While appellate courts nevertheless may disregard this finding by a jury approved by judgment of the District Court and may nevertheless render judgment despite the jury verdict, which the District Court itself could not do, I feel this power must of necessity be exercised sparingly.
The Code of Practice articles governing trial by jury in civil cases indicate that the jury is judge both of fact and of law, see annotations to Article 520, Code of Practice, which provides:
"The jury is always at liberty to give a general verdict by pronouncing on the law and on the fact, in the case submitted to them.
"Therefore, the law permitting either party to submit specially the facts in the case to the jury, and so depriving them of the right of giving a general verdict in the suit, is abrogated."
Pretermitting the question of whether any evidence as to purchases from the Fornea Brothers Lumber Company other than those pleaded in the petition (the earliest of which was October 7, 1952) should have been admitted in evidence as proof of any misdemeanor committed, and I do not believe they were admissible since they were ultra petitioner, (see Article VIII of Petition, quoted in majority opinion above); as to those purchases made during a previous term on the police jury, I am further inclined to the belief that just as a removal suit is abated by the election of the defendant official to another term or another office, State ex rel. Riddle v. Jeansonne, 205 La. 818, 18 So.2d 306, so should the cause of action be abated upon the official's being re-elected to another term or elected to another office on the principle that our great sovereign, the people, have in their infinite wisdom seen fit to anoint the aspirant despite his past shortcomings; albeit, there is some authority to the contrary, see Stanley v. Jones, 197 La. 627, 2 So.2d 45, on the merits at 201 La. 549, 9 So.2d 678.
I respectfully dissent.
On Application for Rehearing
Rehearing denied.
It has been called to our attention by defendant police juror (and not denied by plaintiffs-appellants) that the 21 photostats of checks not introduced into evidence, were inadvertently included in the bundle of photostats of checks properly introduced into evidence. These are the transactions denoted in the majority opinion as "photostatic copies." In my opinion these were improperly included in the record, as they were not before the District Court, nor is there one line of testimony concerning them. The defendant never had an opportunity to explain or testify concerning them.
The "public contract fraud" act is directed against any public official securing the "expenditure of public funds" to himself or any partnership in which he has an interest. If the transactions above are omitted from our consideration, it will be seen that there is absolutely none after March 31st (or April 31st), 1952, to the "Fornea Brothers", the only firm whatsoever of all the payees in which defendant had any interest according to any testimony whatsoever. (For instance, the "Fornea Lumber Company" as shown by the testimony and the billheads is a partnership composed at various times of T.P. Fornea, J.E. Fornea and W.W. Fornea.) There is not one line of testimony to contradict his sworn testimony, and that of his brother and alleged partner, W.W. Fornea, that he had divested himself of all interest in said firm after the first quarter of 1952.
The fact that A.L. Fornea endorsed and cashed the checks of the other Fornea enterprises owned by his brothers is certainly suspicious, and justifiably might lead to the belief, if supported by any evidence to this effect, that defendant disguised the expenditure of public funds to himself by having the payees denoted as his brothers' firm. But not only is this inference unsupported by the testimony before us, but contradicted by the sworn testimony of defendant and his brothers, believed by the jury.
Thus in effect we are finding the District Court's judgment manifestly erroneous because we doubt the credibility of defendant's witnesses and find that his mere endorsement of the checks and cashing same (explained both by him and the State's witnesses as occasioned by the nine brothers' interchangeably doing one another's banking business at the Bank which was five miles away from their own community) by this very fact constitutes a violation of the public contract act, despite uncontradicted sworn testimony that these acts did not constitute the "expenditure" of funds to defendant. But determination of credibility is a function of the trier of fact, not of the appellate court. We have permitted presumptions or inferences created in our own minds (which, after all, are not evidence) to outweigh sworn testimony found credible by the District Court and jury.
Furthermore, although in view of the foregoing this observation is not necessary, out of the ten "Fornea Brothers" transactions properly in the record, only one (June 10th, 1953, in amount of $315.76) was made from the Fifth Ward account, defendant being a juror from the Fifth Ward. The majority opinion found that when a police jury operates on the "ward system", a police juror ipso facto secures the "expenditure" of public funds to himself when purchasing for his ward from a firm in which he owns an interest; since under the "ward system", he directs and must approve expenditures in his ward. Thus he can no longer hide behind the fiction that it was a public body, not himself, who made the purchase. But the correlative of this doctrine is that the police juror does not (in the absence of any special showing) exert influence to secure expenditures of public funds for purchases made for the account of other wards, since under the "ward system" it is the other ward's police juror who secures the expenditure. It may be added that the public contract act does not prohibit purchases by the police jury from firms in which its members own an interest, but merely the use of the police juror's influence to secure this purchase; for it is quite obvious that in many instances it may be most efficient and economical to purchase from such a firm, such as where it runs the only gravel pit in the vicinity, etc.
For the above reasons, I respectfully disagree with the majority's conclusion that no rehearing should be granted.