State Ex Rel. Cyr v. Long

BRUNOT, J. This is an intrusion into office suit. It is brought under the provisions of sections 2593, 2594 and 2597 of the Revised Statutes of Louisiana, as amended by Act No. 102 of 1928. The pleadings consist of relator’s original and supplemental petitions, to which respondent filed three exceptions and a plea of estoppel. He thereafter pleaded the unconstitutionality of Act No. 102 of 1928. The issues presented can be briefly stated, but, in this case, we think the pleadings should be quoted in full. The relator’s original and supplemental petitions and respondent’s exceptions and pleas follow in the order of their filing, viz.: *171 Petition. “To the Honorable, the First Judicial Dis- '■ trict Court of the State of Louisiana, in and for the Parish of Caddo: “The State of Louisiana on the relation of Paul N. Cyr, a resident of the Parish of Iberia, and said Paul N. Cyr, who joins the State as Plaintiff herein,, present this, their petition, as plaintiffs herein, and for cause of action, against Huey P. Long, a resident of the Parish of Caddo, now made defendant herein, alleges and avers: “1. That said Paul N. Cyr, was duly elected Lieutenant, Governor of ,the State of Louisiana at the election held on the Tuesday next following the third Monday in April, in the year 1928, for the ensuing term of four years, beginning according to law. “2. That on the 21st day of May, 1928, said Paul N. Cyr, took the oath of office as Lieutenant-Governor and entered upon the duties thereof. “3. That the said Huey P. Long, Defendant herein, was duly elected Governor of the State of Louisiana, at the election held on ■the Tuesday next following the third Monday in April, in the year 1928, for the ensuing term of four years ■ beginning according to law. “4. That on the 21st day of May, 1928, said Huey P. Long, took the oath of office as Governor, entered upon the discharge of the functions of Governor, and has been claiming and occupying the said office up to the present day; that the said oath contains the language required' to be taken by members of the United States Senate, under the Constitution of the United States, Article VI, Clause III. “5. That at an election held in the State of Louisiana, on the 4th day of November, 1930, according to law, the said Huey P. Long was elected United States Senator from the State of Louisiana for the term beginning March 4th, 1931, and ending March 3rd, 1937. “6. That the said Huey P. Long submitted his credentials 'in regular form as United States Senator from Louisiana for the term of six years, beginning March 4th, 1931, to the United States Senate at the National Capitol at Washington, D. C., and they were received and accepted by the said United States Senate, sitting in regular session, and have ever since remained in the records of the United States Senate. “7. That by thus actively and voluntarily presenting his credentials to the Senate, the said Huey P. Long, irrevocably accepted the Senatorship of the United States from the State of Louisiana, for the term beginning March 4, 1931, in pursuance of his election as such; and he caused himself to be duly enrolled as Senator from the State of Louisiana for said term. “8. And in consequence -of the foregoing the said Huey P. Long, procured for himself all the prerogatives, privileges and immunities possessed by any and all other Senators of the United 'States. “9. That the said Huey P. Long, has received official recognition as Senator from the State of Louisiana for the term beginning March 4th, 1931, and is now recognized as such Senator by the Government of the United States. “10. That there is now no vacancy in the office of Senator from Louisiana. *173 “11. That the said Huey P. Long, is entitled to receive his salary monthly from and after March 4th, 1931. “12. That the said Huey P. Long, has had assigned to him as his office as United States Senator from Louisiana, Room No. 141 in the 'Senate Office Building at the Capitol at Washington, D. C. “13. That the said Huey P. Long, has had assigned to him, as Senator of Louisiana, telephone No. S88 on the United States Capital Exchange. “14. That the said Huey P. Long has done •divers other acts which can only be performed by the United States Senator. “15. That subsequent to the 15th day of October, 1931, and after the said Paul N. Cyr had been inducted into the office of Governor, the said Huey P. Long had procured Alvin O. King, President pro tempore of the Senate of the State of Louisiana, to act under the Constitution of Louisiana, and to assume the “functions of Lieutenant-Governor and has publicly acknowledged said King as the person who should act as Lieutenant-Governor •upon the accession of the elected LieutenantHovernor, Paul N. Cyr, to the Governorship of Louisiana, which has been vacated by the -election, together with the other acts thereafter of the said Huey P. Long. “16. That, therefore, the said Huey P. Long,. Defendant, is today, and has ever since March 4th, 1931, been a member of the United ¡States Congress. “17. That the .Fourth Section of article 19 of the Constitution of the State of Louisiana ■forbids any Member of Congress to hold or ■exercise any office of trust or profit under the ’State of Louisiana. “18. That by accepting-the office of United States Senátor, said Huey P. Long, by that act, forfeited and lost all right to hold the office of Governor of Louisiana. “19. That although the said Huey P. Long, has been duly elected and has voluntarily accepted the office of United States Senator and gone into possession of same, and by that act forfeited and vacated the office of Governor of Louisiana, said Huey P. Long, continues to unlawfully hold and exercise, and to remain in. possession of the office of Governor of the State of Louisiana. “20. That on the 13th day of October, 1931, said Paul N. Cyr, on being advised that he was of right Governor of Louisiana, took the oath of office as such before the Deputy Clerk of the First Judicial District Court, in and for the Parish of Caddo; and in due cqurse deposited the said oath for filing in the office of the Secretary of State of Louisiana. “21. That on the 13tb day of October, 1931, the said Paul N. Cyr advised the said Huey P. Long in writing that he had taken the oath of office as Governor of Louisiana, and had been inducted into said office; and made demand upon the said Huey P. Long that the said Huey P. Long immediately surrendered the office of Governor, together with its archives and all that pertain to such office, and divest himself of the appearance of Governor of Louisiana. “22. That on Wednesday, October 14th, 1931, the said Huey P. Long, in a written reply to said Paul N. Cyr, declined in toto to accede to the demands of the said Paul N. Cyr. *175 “23. Plaintiffs further aver that from the date the said. Huey P. Long was informed, as aforesaid, that Plaintiff, Paul N. Cyr, had qualified as Governor of Louisiana, and received the demand of said Paul N. Cyr, for the said office of Governor, the said Huey P. Long has held the said office of Governor in bad faith. “24. That the salary, fees and emoluments appertaining to the office of Governor from the 13th day of October, 1931, until he shall vacate the office of Governor of Louisiana, are justly and truly the property of Plaintiff, Paul N. Cyr, and said Huey P. Long should be condemned to pay over to said Paul N. Cyr, such fees and emoluments as he has drawn appertaining to the period beginning October •13th, 1931, to the time of his vacating the said office. “Wherefore, Plaintiffs pray that the said Defendant, Huey P. Long, be duly cited to appear and answer this petition, and after legal delays and due proceedings had, judgment be rendered in favor of Plaintiffs, and against the said Huey P. Long, ordering the said Huey P. Long to immediately vacate the said office of Governor of Louisiana, and to deliver the same to the said Paul N. Cyr; and that he be further condemned to deliver to said Paul N. Cyr, all property of the State of Louisiana, and all books and papers in his possession appertaining to the office of Governor of Louisiana. ^ “And plaintiffs further pray that if the said Huey P. Long should refuse to comply with the judgment of this Court, that he be ejected from the said office in the manner provided by law. “Plaintiffs further pray that the said Huey P. Long, be ordered to pay over to the said Paul N. Cyr, all salary which he shall have drawn as Governor of the State of Louisiana, pertaining to the period which shall have elapsed from the 13th, day of October, 1931, up to the time he vacates and delivers the said office. “And Plaintiffs pray for costs and for necessary orders and for general and equitable relief in the premises.” 'Supplemental and Amended Petition. “Now into Court come the State of Louisiana, on the relation of Paul N. Cyr, a resident of the Parish of Iberia, and said Paul N. Cyr, who joins the State as Plaintiff herein, and adopting all of the allegations and prayer of the original petition herein, present this, their supplemental and amended petition as plaintiffs herein, and for additional cause of action, against Huey P. Long, a resident of the Parish of Caddo, made defendant herein, allege and aver: “I. That they are informed and believe, and so aver, that the said Huey P. Long, has in writing made demand on George H. Moses, Senator from New Hampshire and Chairman in charge of the Senate Office Building, requesting ample accommodations in the way of rooms for himself and his law library of three thousand volumes. . “II. That they are informed and believe, and so aver, that the said Huey P. Long, has caused the public printer, by virtue of being United States Senator, to have printed for him letter heads under the title of United States Senator, and has paid for same. *177 “III. That they are informed and believe, and so aver, that the said Huey P. Long, has further availed himself of his functions and prerogatives as a United .States Senator by voluntarily requesting fr.om the Department the distribution of the Agricultural Year Booh for the year 1931, to certain of’ his constituents who had requested copies of same; said Year Booh being distributed only through the Members of Congress and each United States Senator being entitled to distribute a certain number of copies of same. “Wherefore, premises considered, petitioners reiterate the prayer of their original petition filed herein; pray for service and citation hereof on said defendant, and pray further that this supplemental and amended petition be filed and allowed. “Pray for all orders and decrees necessary, and for full and equitable relief in the premises.” Exceptions and Plea of Estoppel. “Now into this Honorable Court comes the defendant, and excepts to the petitions and suit filed herein, and shows that the same should be dismissed for the following causes and reasons to-wit; • “I. The Court is without jurisdiction ratione materiae herein. “II. The petitions and suit filed herein by the plaintiffs do not allege or set forth a cause of action. “III. The petitions and suit filed herein by the plaintiffs do not allege or disclose a right of action on the part of said plaintiffs. “IV. The said plaintiff Paul N. Cyr, is es-topped in equity and in law from bringing or prosecuting this suit or from standing in judgment herein. “Wherefore, your defendant respectfully prays that these exceptions be sustained and that the plaintiffs’ suit be dismissed at.their cost. ■ “He prays for all and general relief and for judgment according to law.” Amendment and Supplement to Exceptions. “Now into this Honorable Court comes the defendant, Huey P. Long, and adds this as his amendment and supplement to the exceptions heretofore filed in this case, to-wit: “V. That Act 102 of the Regular Session of the Legislature of the State of Louisiana of the year 1928, is unconstitutional insofar as the same purports to empower the said plaintiffs to file this suit and to prosecute the same, and insofar as the same purports to give this Court jurisdiction of a suit against defendant for the purpose of removing and ousting him from the office of Governor of the State of Louisiana, the same being contrary to and violative of the following provisions of the Constitution of the State of Louisiana, to-wit: Sections 1, 2, 3, 4, 5, 6 and 9 of Article IX of the Constitution of the State. of Louisiana; that the provisions as made by the said Constitution of the State of Louisiana for the method and manner of bringing suit for the removal of one claiming an office and for the removal of one holding the office of Governor are exclusive, and legr islative provisions in addition thereto, not within the scope of the provisions of the Constitution, are invalid as violative of said Constitution. *179 “Wherefore, defendant respectfully prays that this supplement and amendment to the exceptions filed herein may be filed and allowed; that the exceptions, including this supplement and amendment, heretofore filed be sustained by the Court; for all and general relief and judgment according to law.” The case was heard upon the issues thus presented. The court below overruled the respondent’s exceptions to the jurisdiction of the court, of no right of action, his plea of estoppel and of the unconstitutionality of Act No. 102 of 192S, but maintained his exception of no cause of action and dismissed the suit. Relator appealed from the judgment and contends here that the district judge erred in maintaining respondent’s exception of no cause of action; that the ruling upon the exception should be reversed and the case should be remanded for the joining of issue upon the allegations of relator’s original and supplemental petitions and the trial of the case upon the merits. The respondent has answered the appeal and prays that the judgment appealed from be reversed in so far as it overrules respondent’s exceptions to the jurisdiction of the court and of no right of action and his plea of estoppel, but, in all other respects, .that it be affirmed. It will be noted that in respondent’s answer to the appeal there is no reference to the lower court’s ruling upon his pleaded unconstitutionality of Act No. 102 of 1928. The first question to be considered is respondent’s exception to the jurisdiction of the court ratione^materise. If that exception be well founded, the court is powerless to pass upon any other issue presented. Both in argument and brief relator exhaustively recites the historical facts and contemporaneous interpretations thereof, which immediately preceded or were coincidental with the adoption of the Constitution of the United States and the organization of the first Congress thereunder. This recital is interesting and, to some extent, instructive, but it is not helpful to the court in deciding whether or not • it may substitute its judgment for that of the Senate in determining when and under what circumstances one, who has been elected a United ' States Senator, actually becomes a member of that body, clothed with the powers and charged with the performance of the duties pertaining to that office. Relator concedes that section 5 of article 1 of the Constitution of the United States is exclusive and, therefore, each House of Congress is the sole judge, respectively, of the elections, returns, and qualifications of its members. 39 Cyc. p. 696. The courts must take judicial notice of the Congressional Record. 23 C. J. p. Í02. It is true, as alleged in relator’s petition, that the respondent has forwarded his credentials to the Senate, but it 'is not true that they have been accepted by that body. By reference to the Congressional Record, vol. 74, No. 1, 71st Congress, 3d Session, p. 292, and vol. 74, No. 3, 71st Congress, 3d Session, p. 2576, the credentials of respondent were read and placed on file, and the credentials presented for all Senators were printed in full. The Senate, therefore, has not formally accepted respondent’s credentials, and his right to qualify, in the manner prescribed by rule II of the United States Senate, and to function, as a member of that body, remains to be definitely determined by *181 the Senate, the sole, judge thereof, sitting in a judicial capacity, and passing upon an unmixed federal question. The several other enumerated acts alleged in relator’s original and supplemental peti-' tions, as being persuasive of respondent’s irrevocable acceptance of the office of United States Senator, do not impress us. They are the customary courtesies extended by the Senate to a Senator-elect, in anticipation of his formally qualifying and actually exercising the powers and performing the duties pertaining to the members of that body. The relator’s suit is brought under the provisions of penal laws. Sections 2593, 2594, and 2597 of the Revised Statutes as amend■ed by Act No. 102 of 1928, prescribe penalties for their violation. It must be noted, in this connection, that Act No. 123 of 1921 also prescribes penalties for dual office holding. If it were true that the Governor of this state had been prosecuted and convicted, or had pleaded guilty, to the charge or charges of committing any one, or all of the misdemeanors denounced by the laws relator relies upon, would such a conviction give this court jurisdiction to entertain a suit for his removal from office? The relator alleges that respondent was duly elected Governor of this state; that he qualified as Governor by taking the prescribed oath of office; that since his induction into that office he has retained possession of it and has continuously exercised the powers of the ■office; and that the term of said office has not expired. In this suit it is necessary that relator allege such facts, but had he omitted - •to allege them, the court must, perforce, take judicial cognizance of them. The court must also take judicial cognizance of the fact that since respondent’s induction into the office of Governor of Louisiana, he has been recognized and dealt with as the chief executive .of the state by the national government, by every department, hoard, etc., of the state of Louisiana, by the citizenry of the state and by the relator himself, from the date of his induction into office as Lieutenant Governor of Louisiana, until October 13, 1931, more than eight months after March 4, 1931, on which latter date the relator now; contends that respondent actually became a United States Senator,"and since that date has been a usurper of the office of Governor of Louisiana and a dual office holder. *' Being the duly elected, formally qualified, and re'eognized Governor of Louisiana, and not yet having been recognized as a Senator, and inducted into that office, it is not legally possible for any court, if it was vested with jurisdiction, to hold that respondent was a usurper or intruder into the office of Governor of Louisiana, or that he is presently a dual office holder. * If he was, in fact, an intruder into office and a dual office holder, the Constitution of the state prescribes the exclusive method by which he may be removed from the office of Governor. Article 9 of the Constitution of 1921 fixes the exclusive forum for the removal from office of all officers of the state, district, parish, ward, or municipality. We quote the pertinent parts of the first six sections of article 9. “Section 1. All state and district officers, whether elected or appointed, shall he liable to impeachment for high crimes and misdemeanors in office, incompetency, corruption, *183 favoritism, extortion, or oppression in office, or for gross misconduct, or habitual drunkenness. “Sec. 2. All impeachments shall be by the House of Representatives, and sháll be tried by the Senate, whose members shall be upon oath or affirmation for that purpose, and two-thirds of the senators elected shall be necessary to convict. “Sec. 3. For any reasonable cause, whether sufficient for impeachment or not, any officer, except the Governor or acting .Governor, on the address of two-thirds of the members elected to each house of the Legislature, shall thereby be removed, and be ineligible to succeed himself. “Sec. 4. For any of the causes mentioned in Section 1 hereof, judges of the Supreme Court may be removed from office by judgment of a court of not less than seven judges, to be composed of the judges of the Supreme Court not connected with the case and a sufficient number of the judges of the courts of appeal, oldest in point of service. “Sec. 5. For any of the causes specified in Section 1 hereof, the judges of the courts of record may be removed by judgment of the Supreme Court, which is hereby vested with original jurisdiction therein, and may make such rules for the speedy and economical trial thereof as it deems proper. “See. 6. 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.” It is clear that the Constitution of 1921 confers upon the Legislature the exclusive power to remove a Governor from office, and it prescribes but one procedure by which that end may be attained, viz., by impeachment. Section 3 of article 9 of the Constitution excepts the Governor and acting Governor from the effect of its provisions,; section 4 relates only to judges of the Supreme Court; section 5 relates to judges of courts of record; and section 6 excepts the Governor, Lieutenant Governor, and judges of the courts of record from its provisions. Articles 106 of the Constitution of 1868, 201 of the Constitution of 1879, 222 of the Constitution of 1898, 222 of the Constitution of 1913, and article 9 of the Constitution of 1921 provide the same methods for the removal of a constitutional officer. This court has applied these provisions in a strictly literal sense. In the ease of State v. Dunson, 138 La. 131, 70 So. 61, 62, the court adopted the opinion of Judge Bell as its own, and held as follows: “If the Constitution provides the method for the removal of justices of the peace, constitutional officers, then that method is exclusive. State ex rel. Young v. Capdevielle, 135 La. 669, 65 So. 890, on rehearing.- Article 222 of the Constitution of 1913 provides the methods for removal of a justice of the peace who has been guilty of a misdemeanor, etc., and he can be removed in no other way. The same principle is announced in other decisions of this court, and, until the present time, it stands unquestioned, without modification, as the jurisprudence of this state. Relator cites the following cases, viz.: Mar-bury v. Madison, 1 Cranch, 137, 161, 162, 2 L. Ed. 60; Ableman v. Booth, 21 How. 506, 16 *185 L. Ed. 169; Barry v. U. S. ex rel. Cunningham, 279 U. S. 597-615, 49 S. Ct. 452, 73 L. Ed. 867; Woodson v. Murdock, 22 Wall. 369, 22 L. Ed. 716; Rhode Island v. Massachusetts, 12 Pet. 721, 9 L. Ed. 1233; Cohens v. Virginia, 6 Wheat. 384, 5 L. Ed. 257; Johnson v. Atlantic G. & W. I. Transit Co., 156 U. S. 618, 15 S. Ct. 520, 39 L. Ed. 556; Page v. U. S., 127 U. S. 67, 8 S. Ct. 1026, 32 L. Ed. 65; Brown v. Piper, 91 U. S. 37, 23 L. Ed. 200; Burton v. United States, 202 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; State ex rel. Gray v. Pipes, 17 La. App. 502, 133 So. 812; two Louisiana cases on the question of estoppel, and nine Louisiana cases holding that the possession and occupancy of two incompatible offices violates the Constitution of Louisiana. In not a single one of the cited eases — nor in a single case in the books except the ancient case of Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567 — where a Governor was actually in office, was he disturbed by the courts. Moreover, in no case cited by relator was the jurisdiction of the court ratione materise an issue. A mere reading of the cited eases will demonstrate that they are not even persuasively helpful to the court in deciding the issue we are considering. The same may be said of relator’s references to and quotations from Elliott’s Debates, Warren’s Making of the Constitution, and the Senate Journal. It would be vain and useless, at this time, to seriously consider any citation that does not pertain to the issue before us. For the foregoing reasons we are convinced that respondent’s exception to the jurisdiction of the court ratione materise is sound in law and must be maintained. Being without jurisdiction, the court is powerless to pass upon any other question presented by the pleadings. It is therefore decreed that the judgment appealed from be and it is reversed; that respondent’s exception to the jurisdiction of the court ratione materise is maintained; and this suit is dismissed, at relator’s cost in both courts. O’NIELL, C. J., and ROGERS and ODOM, JJ'., are of the opinion that the court has jurisdiction to decide this case. OVERTON, LAND, and ST. PAUL, JJ., concur in the decree for the reasons assigned by ST. PAUL, J.