State ex rel. Attorney General v. Lazarus

The opinion of the Court was delivered by Pochjé, J. This proceeding, brought for the removal of the respondent from the office which he now holds, is predicated on two articles of tlie State Constitution, which read as follows: Art. 196. “ The Governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer, Attorney General, Superintendent of Public Education, and tlie judges of all the courts of record in this State, shall he liable to impeachment for high crimes and misdemeanors, for nonfeasance or malfeasance in office, for incompetency, for corruption, favoritism, extortion or oppression in office, or for gross misconduct or habitual drunkenness.” Art. 200. “ For any of the causes specified in Article 196, judges of the courts of appeal, of the district courts throughout the State, and of the city courts of the parish of Orleans, may he removed from office by judgment of the Supreme Court of this State, in a suit instituted by the Attorney General or a district attorney in the — 144 — name of file State, on his relation. The, Supreme Court is hereby vested with original jurisdiction to try such causes ; and it is hereby made the duty of the Attorney General, or of any district attorney, to institute such suit on the written request and information of fifty citizens and taxpayers residing within the territorial limits of the district or circuit over which the judge, against whom the suit is brought, exercises the functions of his office. Such suits shall be tried, after citation and ten days? delay for answering, in preference to all other suits, and wherever the court may be sitting; but the pendency of such suit shall not operate a suspension from office.” * * * The charges against this respondent are: uonfeasance and malfeasance, favoritism and oppression in office, gross misconduct and incompetency, contained and detailed in eight specifications. 1 st. The first specification is substantially as follows : That the defendant, without any color of law or right, aud in violation of his duty as judge, illegally obtained, on the 3d of March, 1882, possession of the sum of $291 54, of a fund belonging to the succession of Nicholas Quiazzaro, and that he has never accounted for said sum to the heirs, nor to any heir or tutor of the heirs or other representative of the succession. It is averred that said sum was the balance of a fund belonging to said succession, and placed, under orders of the court, in the custody of Ben Onorato, auctioneer, who had sold the property whence the fund proceeded; and that it was drawn from the custody of said B. Onorato by means of an order of court issued by the defendant, and by him entrusted for execution to one Charles E. Sel, filio was instructed to, and did, bring and deliver to the defendant the aforesaid sum, being the balance of the fund hereinabove described. In his answer to this specification the defendant gives a detailed history of the proceedings through which his court obtained control of the funds belonging to the succession of Nicholas Quiazzaro. It appears from his statement and from evidence in the record that Quiazzaro died in September, 1868, leaving a considerable estate, which, after administration, went into the hands of his surviving widow, as community property, belonging to herself for one-half, and the other half in equal shares to her three minor children, Ernestine, Gilbert and Arsene Adelaide Quiazzaro, the latter having been born a few months after the death of the father. The administrator’s account was presented in 1870, and was accepted by the widow in an authentic act, on September 14, 1870. It showed clear assets amounting to the sum of $22,649 97. — 145 — On tlie judicial demand of two of her children, who had then become of age, the widow Quiazzaro, who had in the meantime contracted a second marriage, presented to the court on the 28th of May, 1880, an account of her tutorship, which showed her indebtedness to her children to be $3651 11 to each, and which was homologated. At the organization of the present Civil District Court, the record of the succession of Nicholas Quiazzaro was allotted to the division to which the defendant had been appointed. And shortly thereafter, the widow of Quiazzaro, who had been abandoned by her second husband, presented a petition to the court for the purpose of being judicially authorized to sell, free of the minor Arsene Quinzzaro’s mortgage, two pieces of immovable property which she owned in this city, and which she had purchased in the year 1869, at the aggregate price of $10,000. Considering the amount of taxes due on the property, its dilapidated condition and its greatly depreciated value, the family meeting recommended and the court ordered a sale of the property. No adjudication having heen made at the first offering, the application for a sale was renewed, and after considering the recommendations of a second family meeting, and a report made to him by Joseph Garidel, whom he had appointed as an expert to ascertain the amount of taxes due by, and exigible against, the property, the judge rendered the following decree of date of April 5,1881: “It is ordered, adjudged and decreed that the'proces verbal of the 12th of February, 1881, be homologated and approved, and the recorder of mortgages directed to erase and cancel the general mortgage in favor of Ai sene Adelaide Quiazzaro, in so far as the same affects or operates upon the property described in the petition and proces verbal of the date aforesaid. “It is further ordered, adjudged and decreed that'the property described as aforesaid he sold for cash, by Ben Onorato, auctioneer, to the highest bidder, after usual advertisements prescribed bylaw. “ It is further adjudged.and decreed that a proces verbal of the sale he filed in court, and the price realized from said sale be deposited in the judicial depository, there to await the order of the court for the payment of taxes and charges, upon the court’s approval. “ It is further ordered, adjudged and- decreed that Henry Bier be authorized to settle the taxes due on said property j first filing a statement at what rates said taxes can be settled, and subject to the court’s approval. “It is further ordered, adjudged and decreed that any surplus re — 146 — maming from the amount realized from said sale, after payment of the taxes, charges and costs due by said property, up to the amount of the general mortgage in favor of Arsen© A. Quiazzaro, be invested in State registered bonds, under Act of 1857 and Article 348 of the Civil Code “Audit is further ordered that a fee of fifty dollars be taxed in favor of Jos. Garidel, as costs.” Tn obedience to that order the two pieces of property were sold, and realized together the sum of $2025, of which $205 remained in the hands of Onorato, and were subsequently disbursed by him under orders of the court, and the balance, $1820, was deposited in the Branch Depositary of the State National Bank, which had previously been selected as the judicial depository of tlie Civil District Court. From the books of tlie bank it appears that the account was opened and was kept under the following title and style : “ Ben Onorato, administrator succession Nicholas Quiazzaro, No. 824 Civil District Court, Division E, subject to order of court.” The deposit was made on June 17, 1881, from which date to the 10th -of February, 1882, numerous orders were rendered by the court directing the disbursement of tlie fund for various purposes j the bank paying out on Onorato’s check, accompanied by the order of the court, calling for an amount corresponding with that of the check. The orders included between these two dates may be ciassifted as -follows: For all State and city taxes due on the property............. $966 85 For costs incurred for the sale, including the auctioneers’ commission, advertisements, two family meetings, attorneys’ fees, court costs, stamps, express and appraisers, etc.... 469 35 Por Garidel’s fees as expert, and fees of other experts........ 150 00 Amounting together to....................................$1586 20 And leaving a balance out of the fund of.................... 438 80 Now, the answer avers that subsequently additional payments of ■taxes and costs were made, and the minutes of the court and the hooks of the bank show that an order for the disbursement of $147 26, purporting to be for taxes still unpaid, was made on tlie 10th of February, 1882, which left to the credit of the fund $291 54. It is then averred in ■the answer that on the 2d of March, 1882, the defendant was reminded by bis minute clerk, F. A. Luminais, since deceased, of the existence of that balance, which he estimated at about $200, and which, he suggested, should be invested in bonds, in compliance with the previous order of the court. Whereupon, the following morning the defendant — 147 — made arrangements with a friend of his, Henry Bier, a broker in bonds, for the purchase of bonds, without charging any commission therefor. On the same day, the 3d of March, 1882, lie issued the following -order: “ More than six months having elapsed since the sale of the property, in the above succession, and no opposition to the distribution of the same having been made, and no one claiming any interest in the proceeds of said property other than the minor Quiazzaro: “ It is ordered that the proceeds of said property belonging to the .succession of Quiazzaro be invested in State Consols, or bonds of the State known as 'Baby Bonds,’and that said bonds be registered by the Auditor of the State, under Art. 348 of the Civil Code.” On presentation of this order to Onorato, on behalf of the judge, by Charles E. Sel, then a deputy clerk in the Civil District Court, the former declined to honor it for want of sufficient precision. On the report of Sel of such refusal to the judge, the latter added, after the words “ Civil Code” and over the signature of the deputy clerk who had made out the certified copy of the order, the following words: “And that B. Onorato be ordered to pay the same over to make the said investment.” The order thus amended brought out of Onorato a check of $291 54, which was cashed by Sel, who handed the roll of money to the judge, some time after 3 o’clock p. m.. of the same day. The answer then avers that without counting the roll of money, the Judge handed it to his minute clerk, Luminais, with instructions to have the same invested in “ Baby Bonds” through Henry Bier. On subsequent inquiry of Luminais, the judge was informed that the bonds had been bought, and were in the possession of Bier, from whom they were obtained by Sel, who delivered them to the judge, by whom they were handed to Luminais, the minute clerk, with instruc-tions to paraph them for non-negotiability, and to deliver them to John Lemonnier, the counsel of the tutrix, also since deceased. And it is then averred that from that time, about the 6th of March, 1882, •the defendant never more saw these bonds to this day, and never heard of them until the month of April, 1886, on the occurrence of certain events to be hereafter referred to. With the exception of two or three instances, the foregoing recital, taken from the answer and from the evidence, contains a statement of the undisputed salient facts involved in the discussion of the first specification of relator’s petition. As.a result of the answer and of the voluminous evidence which was — 148 — introduced on allegations therein contained, the original pleadings have been considerably enlarged, and the distribution of the whole fund brought into court, as well as the manner of making the distribution, has been discussed by counsel on both sides, as a vital issue on this branch of the case. It appears from the record that every order, made for the purpose of drawing money from the Quiazzaro fund in the judicial depository, was rendered ex parte without notice on, or hearing- from, the tutrix, the under-tutor, or any other party who may have had any interest in its proper distribution. This course is charged by relator’s counsel to he in direct violation of the rules adopted by the five judges, including the defendant, composing the Civil District Court for the Parish of Orleans, and to be of itself a malfeasance and a gross misconduct. The twenty-fourth of these rules was adopted in furtherance of Article 133 of the Constitution, and of Act 33 of 1880 of the Legislature, of Louisiana. That rule, which treats of the judicial depository, contains, among others, the following provisions: “ 3. Drafts or orders on the bank tor the payment of money or delivery of property, shall he made to the order of the person entitled thereto, or his attorney, duly authorized, and shall specify in what particular suit or on what account the money or property is to he paid out or delivered. “4. Such orders or drafts shall he drawn by the officer, pursuant to an order of the judge of the division having control of the case, wherein the money or property has been received. “ No order, unless by consent, in any pending cause, shall he granted except on regular notice or order to show cause, duly served on the attorneys of all parties who have appeared therein.” As the property which produced the fund was the personal property of the widow Quiazzaro, it is apparent that a compliance with the rule would have required her consent in her individual capacity, or in default thereof, a notice on her to show cause, in «order to legalize every order for the payment of taxes, of costs, of experts, and of all other disbursements down to the balance, or residue, which accrued to the' minor; and that the order for the investment in bonds of that residue should have been preceded by notice on Arsene Quiazzaro. But nothing of the kind was done, and no disbursement was made, in compliance with the rule. The order for the payment of State taxes was not in favor of the tax collector, hut the money was drawn and disbursed hv Luminais, the minute clerk. The order for city — 149 — taxes was not in favor of the City Treasurer, but the money was drawn by the Civil Sheriff of the parish of Orleans, who settled those taxes, although in the order or decree of the 5th of April, 1881, Henry Bier had been entrusted with that duty. Without expressing any opinion as to the alleged malfeasance which may result from the course pursued by the defendant, the legal mind must conclude that the judge thereby assumed the administration of that fund on his own responsibility, and that in law he must be held to a strict account of his administration. Both in his answer and in the evidence which he has introduced, the defendant has admitted that obligation, and he has endeavored to account for the fund which he liad disposed of, not a dollar of which has, however, been shown to have been received by the acknowledged owner of the residue, after the payment of taxes and other legal charges, the minor Arsene A. Quiazzaro or her legal representative. The result of his administration was a total disaster to the Quiazzaro family. The payment of $966 85 for State and city taxes, of $469 35 as law charges and costs incidental to the two offerings and to the sale of the property, although excessive, as well as the sum of $20, paid to John Dufour for a valuable report on the condition of the property as to taxes due thereon, is legally accounted for, and such a showing would pro tanto be justified in an administrator or tutor. But the same can surely not be said of the amounts allowed to Joseph Garidel, the chief expert, and to a following of minor experts whose mission seems to have been to perform the duties which were incumbent on the judge himself. The decree under date of February 23,1881, which appointed Garidel, who was then the minute clerk of the Court of Appeals, as expert in the premises, and under which he qualified by taking an oath, restricted his authority to report to the court “the amount of taxes and charges due on the properties now owned by Elizabeth lluras, natural tutrix, and on which a general mortgage rests in favor of the minor, Arsene Adelaide Quiazzaro.” As it appears from the record that the statement of taxes due was complicated and required special knowledge and diligent search, the appointment of a competent expert to that end can be justified in law. C. P. 441, 442, 443. But it appears from the defendant’s evidence that Garidel was not the. proper person for such a duty, and that the task was performed by two other distinct and competent experts, John T. Dufour and Win. C. Cole, who were paid for their services $45, notout — 150 — of the allowance made to Garidel, Imfc out of the funds accruing to tlie minor under the original order of the court. From the record it appears that the scope of the chief expert’s authority grew with time, and that he gradually assumed the function of a general adviser of the Couit. With few exceptions, the matters contained in his reports, were a review or synopsis of the pleadings and proceedings in the succession of Quiazzaro, which had been finally settled and woundup since 1870 ; of his views of the evidence; of the contingent rights of certain parties; and an indorsement of the reports of subordinate experts. During all the time covered by these reports, the widow Quiazzaro, who had been legally retained as natural tutrix in anticipation of her second marriage, was before the court-by her counsel, John Lemonnier, who received a fee of $180, from whom the judge could have required and obtained all necessary information to shape his course in dealing with the matter in hand. That was simply to legalize thesale of the property of the tutrix, free of the minor’s general mortgage, to settle the taxes and law charges, and to' secure the residue for the minor. There was no necessity of investigating the previous condition of the Quiazzaro succession further than to ascertain the amount which the tutrix owed to the minor. But the investigation of such matters was peculiarly and exclusively within the judge’s province. A district judge has no more right or authority to employ experts, at the expense of litigants, or of a succession, or of a minor, to examine into and report on the pleadings or evidence in any record, than would have the judges of this court to have similar examinations at a like expense, made of the transcripts winch contain the matters submitted to their review. Yet it appears that out of the very small pittance accruing- to theQuiazzaro minor, the expert Garidel was allowed fees aggregating $95 for researches and reports reaching far beyond the scope of his authority, under the very text of his appointment, and that between the experts together they received as fees $150. Such an allowance v'as not only an act of malfeasance on the part of the judge, but it was an act of spoliation. The next disbursement in the order of discussion is the sum of $147.26, covered by the order of February 10,1882, which order is in the following words: ‘‘ On account presented for taxes due on the property sold in the succession of Nicholas Quiazzaro and still unpaid, it is ordered that the same, amounting to the sum of $147 26, be paid by B. Onorato,, administrator, and charged to said succession.” That is followed on the same day by an order which reads: — 151 — “ Succession of Nicholas Quiazzaro,” * * * “ It is ordered by the court this day, that B. Onorato, administrator, clo render an account of balance of funds in his hands belonging to the succession of Nicholas Quiazzaro.” From the report of Onorato and from the books of the judicial depository it appears that the order was presented and paid; but nothing shows to whom the funds were delivered, as Onorato’s checks in this matter were all made payable to “Bearer.” The clerk of the bank testifies that the check and accompanying order were returned to Onorato on the subsequent occasion that his bank book was balanced, which was on the 14th of the same month; but Onorato testifies that notwithstanding a prolonged and a diligent search among liis papers, he lias been unable totind that particular check and the accompanying order, or any of the checks or orders previously executed in this matter. Henee, the record fails to connect the order with any person as the recipient of the money which it. called for. On the other hand, it is in proof, and, indeed, it is conceded on both sides, that no taxes were then due on the properiy, and that none were paid in the year 1882. In his testimony, the defendant stoutly repudiates the legal existence of both orders, positively denies that, he has ever issued either, and intimates his belief that both were fraudulently interpolated in the minutes of that day by bis minute clerk, F. A. Luminals, since deceased, in whose hand-writing they were entered. In' argument, the defense advanced the theory that Luminais had forged both orders, had collected and appropriated the. amount called for bj- the first order, and that having obtained possession of the bank book, he had it balanced on the 14th of February, thus obtaining the spurious order, which he destroyed with a view to escape detection. But that theory finds no support either in the evidence or in any of the equities or circumstances of the case, when brought to the test of human experience, or of the known spring's of human action. ' In the first place, the defendant admits the authenticity of the orders, in his sworn answer, from which is culled the following averment : Additional payments for taxes and 'costs were subsequently made therefrom, and on February 10th, an older was entered directing Ben Onorato to render an account of the balance of the funds in his hands belonging to tlie succession of Nicholas Quiazzaro. This order was not complied with, possibly because it does not seem to have been served on liim.” — 152 — In the next place, the minutes of all courts of record throughout the civilized world are uniformly recognized as evidence of the very highest rank, and never allowed to he contradicted by parol testimony unless, perhaps, under an allegation of fraud and forgery. No such charge is made in the pleadings in this case; on the contrary, as far as the answer goes, the minute entries are held op as correct. in our jurisprudence the minutes of a court have always been clothed with an authenticity which borders on sanctity. Tn the case of Williams vs. Hooper, 4 N. S. 176, this Court refused to entertain parol testimony to show that a new trial had been granted in a cause where the minutes were silent on the subject. Speaking of judicial records and minutes, the Court said: “The object the Legislature had in view, in directing them to he recorded, was to avoid the danger of trusting to the memories of men to prove them. That'whie’n was attempted hero was still more dangerous. It was not only to establish, from the recollection of witnesses, the judgment of the court, hut do so in contradictiou to what was written. It is far better to bear with cases of individual hardship than violate a rule, the preservation of which is so important to the best interests of society.” The same views are expressed in the cases of Nolan vs. Bobin, 12 Rob. 531, and State vs. Fuller, 34 Ann. 726. In the latter case the Court held that minutes were in the nature of a citation and need not be offered in evidence, as they make proof of themselves. In the instant case the most wonderful feat on record is attempted: the denial of the existence of an order by a judge, when the minutes of his own court show its entry, when a like showing is made ■by docket entries made by a person entirely different from the minute clerk, taken from the original order itself; and all that in the face of an admission of the order in his own pleadings in a cause to which ho is a party. In the ease of State ex rel. Railroad Company vs. Henry L. Lazarus, judge, 34 Ann. 1137, the present Bench had to deal with a similar contention urged by this very respondent, who therein denied the verity of the minutes of his court. The Court held: “However great our confidence in any statement that might be submitted by a judge, nevertheless our knowledge of the facts must he derived from the record, .and we can only take cognizance of them as there shown.” But he says that lie scarcely ever signed his minutes, and never caused them to he read, adding that neither formality could deter a dishonest clerk from making false entries. This, if true, is a sad blow at the legal efficacy and binding force of judicial proceedings. — 153 — The following- is taken from his testimony on that point: Q. Do you sign your minutes, judge? A. No, sir. Q. Do you have your minutes read every day in open court? A. No, sir; there is only one judge in the building that does it. I ■don’t think I was ever in Judge Houston’s court when it was done, but I understand that he has his minutes read to him every morning. Q. Is there any rule about it? A. No, sir. In his answer to the last question the defendant commits a grievous error. There is a wise and a salutary rule of court on the subject. It reads thus : “ The minutes of each day’s proceedings shall be signed by the judge.” (Rule Y.) A compliance with that far-reaching provision by the judge would place it beyond the power of the most dishonest of clerks to interpolate in the minutes any order which did not emanate from the court. And if it be true that any number of the judges of the Civil District Court, or of any other court in the State, omit to sign their minutes, or to cause them to be read in open court every day, it is sincerely'- hoped that the complication which is now under discussion will suggest the propriety of a return to a practice which will afford great and equal protection to judges, litigants and their attorneys, and to minute clerks themselves. But if it be true that Luminais did rob the fund out of that sum of $147 26, by forging an order which he subsequently destroyed, it is difficult to appreciate the motive which could have prompted him. to spread the order on the minutes, which would at any time afford conclusive proof of his guilt. And if he was guilty as charged, it is impossible to conceive why, on the 2d of March, as shown by the answer and by the testimony of the defendant, he should have reminded the judge of the propriety of investing the minor’s residue in bonds. Thieves are not in the habit of recurring to subjects and of agitating questions which are intimately connected with one of their recent operations, an investigation of which would inevitably lead to their detection and conviction. As a rule their memories are defective in the premises. This complete demolition of the theory advanced by the defense, leaves the respondent judge in the attitude of utterly failing to account for a disbursement which he had authorized and directed, and for a purpose which he himself proves to have had no existence or reason. Hard indeed would it be to prove more glaring malfeasance. — 154 — The question now recurs to the disposition made of the sum of $291.54 as the final balance of the fund remaining in the judicial depository. The pivotal testimony on that point is that of Charles E. Sel, then a recording clerk in the Civil District Court, and subsequently a notary public, exercising his functions in the office of two of the defendant’s counsel in this case. His testimony was taken by consent of parties, at the side of his dving bed, a circumstance which gives great weight to his statements. He was entrusted by the judge with the execution of the order of the 3d of March, 1882, and he states in substance what is related of him in the defendant’s answer hereinabove referred to. But he states in addition that he was instructed by the judge to cash the check which he would receive from Onorato, and to bring the money to him (the judge). That he counted the money as it was delivered by the paying teller, and that he handed the identical amount received by him to the judge in the court-room after the court had adjourned, the amount being $291.54 as shown by the check of Onorato, attached to the order of the court, and produced in this case by the judicial depository in answer to a subpoena duces tecum. He then states, not positively, but as an impression, that the judge put the money in his pocket. He further testifies that on the 6th or 7th of the same month, he was called by the judge and sent to Henry Bier’s office for the bonds which the latter had purchased for the judge, and that he brought the package of bonds to the latter, having noticed, from a memorandum attached to the package, as customary with brokers, that the sum invested in bonds was not equal or equivalent in amount to the money which he had handed to the judge on the Friday previous. He then swore, and reiterated under a very rigorous cross-examination, with the corroboration of two nnimpeaehed witnesses, that the judge then and there asked him to retain the bonds, of which he was made the custodian, on a promised compensation of five dollars, and that he then had possession of the bonds for several days, until they were called for by the judge, at which time he went for them at his house and brought them to the judge, from which time he had not heard of them until the troubles of July, 3886. Now, from the books and from the testimony of Henry Bier, it appears that the amount which he bought.in bonds was $330 at 601 cents costing $199.65, which is all the money which lie received in the transaction. But both himself and his bookkeeper entirely fail to remember — 155 — by whom tlie funds were brought to the office, or how they reached there. A most unfortunate incident which has added one of the most serious complications to the innumerable mysteries which cloud this controversy. Bier’s books show that the entry of the transaction was in the name of the “ succession of N. Quiazzaro,” in keeping with the style of all entries made in the orders, the minutes, and the dockets of the court from August, 1880, to the end; and it is truly deplorable that neither Bier nor his bookkeeper can now remember from whom the money invested was handed, or the instruction as to the style of entry, given. Any information on that score would have solved the mystery of the disappearance of the sum of $91 89, the difference between the amount received by the judge and the amount actually invested in bonds. No denial has been made, nor has even an intimation of a doubt been thrown out, touching the precise amount of money which Sel delivered to the judge. In this connection the defendant testifies : “ I had no occasion to count the money. I took it for granted that what Mr. Onorato gave to Mr. Sel, Mr. Sel gave tome, and that I gave Jack. I gave Jack exactly what Sel handed to me without disturbing the package at all. I liad every confidence in Mr. Sel; every confidence in Mr. Luminais.” It is, therefore, perfectly safe to conclude that the aniount of money received by the judge from the judicial depository, as representing the balance to the credit of the Quiazzaro fund, was the sum of $291 54. It is equally clear that the legal effect and result of such conclusive proof is to throw the burden on the defendant to account for the sum thus received. That proposition rests on foundations too sound and too secure to require any support from authority. It is elementary in all systems of jurisprudence. It is recognized in fact, if not in terms, by the defense, who proposes to account for it by the statement that the money was at once handed to Luminais, the minute clerk, since dead, with instructions to hand it to Henry Bier for investment in “baby bonds,” in compliance with the original order of the court in the premises. What are the functions of the minute clerk of that court, and whence comes his legal mandate to receive, handle and dispose in any way, of the funds under the control of the court ? ITndei Article 138 of the Constitution ho is appointed by the judge of the court, holds his office at the pleasure of the appointing power, and his duties are to he regulated by law. Act No. 30 of 1880 defines his duties to he to “keep the minutes of — 156 — the court, issue all notices, copies of rules and orders entered on said minutes, which are required to be issued, and make due entries on the dockets of the causes and of the proceedings therein, and,shall perform such other duties as said judges may direct.” No intimation anywhere that he can be made the official custodian or depository of any money under the control of the court, and no suggestion that he is anything more than the ministerial officer of the court. If the framers of the Constitution had had the remotest intention of entrusting the clerk of that court with the custody of funds of litigants or of successions pending in the court, they surely would not have adopted article 133, which roads : “The Civil District Court for the parish of Orleans shall select a solvent incorporated bank of the city of New Orleans as a judicial depository. Therein shall be deposited all moneys, notes, bond securities (exceptsuch notes or documents as'may be filed with suits or in evidence, which shall be kept by the clerk of the court), so soon as the same shall come into the hands of any sheriff or clerk of court, such deposits shall be removable in whole or in part, only upon order of court.” * f * Act No. 33 of 1880 inflicts a penalty of imprisonment of six months and a line of 8500 on any clerk, sheriff or officer for failing to make such a deposit, hence any construction of the provision which would leave the judge free to violate the same with impunity, must be repugnant to all sense of justice, as well as to common sense. It is therefore impossible to deny the proposition that in handing this money to his minute clerk, the respondent did not discharge the responsibility which attached to him at the moment that he assumed and took upon himself the personal administration of that fund, and especially'when he took manual possession of the same. The selection of Luminais, the minute clerk, as the custodian of the fund, or as the messenger to transmit the same to Bier, could no more operate in favor of the judge as a legal discharge of his assumed responsibility than would have been done by selecting any other unauthorized person or private citizen. It does not, therefore, lie in the mouth of the defense to advance the theory that Luminais, the trusted agent of the judge, embezzled and squandered the sum of 891.89, which wa.s purloined by some one out of the original package, as a legal accounting on the part of the judge for the amount which lie received from the judicial depository. That glaring illegality, and other reprehensible methods adopted in this case, all have their common source in the one great original mischief, which — 157 — consists in the judge’s assuming tlie personal administration, of that, fund. From the moment that such a responsibility was fastened upon him as a result of his violation of the law and of the rules of his court, that burden follows him like a phantom, not to be driven away by anything but uncontrovertible proof of a full accounting to the legal proprietor of the fund. These considerations apply with equal force to his disposition of the bonds sent to him by Bier. According to the testimony of Sel, which is not successfully contradicted, these bonds finally came to the hands of the judge some four or five days after the 7th of March, the day on which they were obtained from Bier, and it was therefore on the lltli or 12th that they were handed by the defendant to Luminais to be paraphed. Now, in his own testimony, the judge shows that on the 17th of the same month, Luminais was discharged by him from his office for habitual drunkenness and for consequent neglect of his duties — the minutes of the court having not been posted up for more than a week. Can the Court now entertain such a transaction as a legal accounting of the bonds, even if they were thus delivered to a person held up as so eminently disqualified for the trust, at most ten days before his discharge as minute clerk for the causes stated by the defense? He must be met with the answer which would be given to any ordinary administrator or tutor under similar circumstances. But there are many mysterious movements connected with all these transactions which the defense has not even attempted to explain. An impartial but practical mind would naturally like to know, and no effort lias been made to explain, why the judge who issued the order of March 3, 1882, for the avowed purpose of carrying ont his agreement of that very morning with Bier, did not send the order directly to the latter who could as well as Mr. Sel have obtained the check from Onorato and the funds from the bank; or why Sel was not instructed to take the check or the money directly to Bier.. Conceding that the investment of that balance in bonds was the end in view, the defendant has not explained why he ordered the money to he brought to him at the court, or why he persisted in that design on Onorato’s refusal, by interpolating additional words in the order, and to send for the money when he knew, as he states, that it could not be received before three o’clock p. m., after the broker’s offices were closed. No more has he undertaken to explain the legal reason or even the — 158 — propriety of removing those funds from the vaults of the judicial depository, after three o’clock on the eve of a legal holiday, the 4th of March which itself was followed by a Sunday, and when he knew, as he admits, that the investment could not be made before Monday, the (ith., on which day the investment of a part of the fund was actually made. He must have known that from Friday, “a few minutes after three p. m.,” (his own testimony) until Monday, the 6th, at 10 a. m., the fund thus converted into currency was to remain in his possession or in that of his clerk — certainly not as safe a custody as the vaults of the bank. Why did he take that risk with money which was not his own, and which, as he pretends, he did not even take the trouble to count, as a check on the person to whom he was about to entrust it? No effort has been made by the defense to lift that cloud so full of suggestive darkness. From that mode of dealing, from the omission to call his discharged minute clerk, on the 17th of March, to an account for the bonds which he had so recently intrusted to him, and from all the illegal acts of the defendant disclosed by the record, and recounted in this opinion, there flowed a result, the most natural to expect: a total loss of the small pittance accruing to the minor, Arsene Qniazzaro, for whom the respondent claims to have had the most paternal solicitude, and for whose ostensible benefit so many bold measures had been inaugurated. Wliat does this conduct amount to in law and under the terms of the Constitution ? The answer is easily suggested. It clearly amounts to malfeasance and gross misconduct. But, in order to leave no doubt as to the correctness of that conclusion, the record throws additional light on 'the conduct of this respondent. In April, 3886, Arsene Quiazzaro, who had, in the meantime, been emancipated, employed counsel to look into the. claim which she liad been informed she had once had to a certain fund in the custody of B. Onorato. As the record of the Quiazzaro succession, to which had been added the papers of the proceedings hereinbefore detailed, could not be found, and as no satisfactory information could be obtained of Onorato, a rule was instituted against the latter as acting administrator, in defendant’s court for an account of the minor’s homestead of $1000, or in default thereof, for an account of a similar amount of baby bonds, in which the said fund had been invested under orders of that court. That rule was fixed for trial on the 7th of May, 1886, and continued from that day, and from week to week, until the 11th of June follow — 159 — ing, when tlie responden!; judge entered an order continuing the rule indefinitely, over the urgent objections of counsel for Miss Quiazzaro. With the exception of two instances, these various continuances were ordered by the court on the ground urged by the defendant in rule, that he could not be forced to trial in the absence of the record, or in the absence of certified copies duly stamped (at a cost which Miss Quiazzaro was unable to meet), of all the minute entries of all the proceedings which were connected with the fund, which had been placed in the custody of Onorato. These different rulings of the respondent are charged by relator to be glaringly erroneous and to amount to a denial of justice, and as intended to suppress knowledge of his connection with the fund. As our jurisprudence has long since settled the doctrine that the animites of a court are part of the record to which they may refer, and need not be offered in evidence (State vs. Fuller, 14 Ann. 726), it was a gross misconduct in the judge to refuse a hearing of the rule on the minute entries. If they were insufficient to make out a case, the judge could have so decided, and his judgment could have been reviewed on appeal. But it was manifestly not a ground for the refusal of a hearing. From the record, it appears that on the 28th of May, the defendant, who claims to have forgotten all about the transactions of the year 1882, particularly of the 3d of March, was reminded of his connection with the fund, notwithstanding which information he persisted in his previous rulings both on the 4th and the 11th of June following. And in November of the same year he entered an order of recusation in the matter, which is now pending before another division of the Civil District Court. In the light of preceding events these acts speak for themselves, and confirm the conclusion of malfeasance and gross misconduct against the defendant. In this connection it is due to the memory of Charles E. Sel to make the following statement: On the 5th of May, 1886, while Onorato was trying to explain his defense to the rule to his attorney, in the same office in which Sel occupied a desk, the latter, overhearing their conversation and desiring to assist Onorato, volunteered the statement that he knew the history of the last check drawn by Onorato, and that it had been handed to, and collected by, him; and the proceeds delivered to the defendant judge, in obedience to his order of the 3d of March. That circumstance is a complete refutation of the theory advanced by the defense to the effect that the missing sum of $91.89 had been — 160 — appropriated by Sel and Luminais, and had been by them both and together spent during the festivities of the 4th of March. The charge is absolutely unfounded and is not supported by a single word of testimony in the record. There is no proof that either of them participated in those festivities, while on the other hand it is shown by the testimony of Theodore Marks, the principal witness for the defense, that the respondent was a marshall in the procession of that dajr. If Sel had been guilty of the charge hurled at him on his dying hed, it would be passing strange that he was the first person to awaken the dormant memory of all other participants in incidents connected with his guilt. In view of his statement in that, connection, in which he is fully corroborated by Onorato, it is very unfortunate, and it is extraordinary that Onorato or his attorney did not at once confer on the subject' with the judge whose order was his shield, and before whose court he ivas prosecuted for an account of that identical fund. The law which governs the case is very plain and free of all ambiguity. The Constitution provides that a district judge may be removed by this Court for “high crimes and misdemeanors, for non-feasance or malfeasance in office, for incomxietencj', for corruption, favoritism, extortion or oppression in office, or for gross misconduct or habitual drunkenness. It is clear that the evidence, implicating the judge on trial with guilt of any one of the causes therein detailed, is sufficient to require a decree of removal. The contention of the defense that the malfeasance or non-feasance or gross misconduct charged must, as a condition precedent to removal, be proved to be criminal or corrupt is manifestly erroneous. It is absolutely untenable either in reason or on authority. It is answered by the mere fact that in the Constitution the contemplated causes of removal are disjunctively connected.. All the authorities which are to the effect that a criminal intent must underlie the commission of impeachable offenses are predicated on the provisions of Sec. 4, Art. 2 of the Constitution of the United States' which reads: “ The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.” That authorities which comment on that language have no bearing on the contention here is as clear as the difference between the two constitutions is palpable. — 161 — Now, malfeasance is defined to be “evil doing,” “ill conduct,” “the doing of what one ought not to do.” (Worcester.) Also “.tlie unjust j>eriormanee of some act which tlie party had no right, or which he had contracted not to do.” (Bouvier.) Or “ the commission of some act which is positively unlawful.” (Abbott.) It was the undoubted intention of the framers of the Constitution, as of all other legislators, that the words which they used should be understood in their plain ordinary meaning. Hence they left it to tlie sound and legal discretion of the Supreme Court to give in proper cases a more precise definition, if it became necessary, and to see to it that none but able, conscienoious and irreproachable judges should by their decree be over retained as magistrates in the State of Louisiana. They acted on the idea contained in the paternal recommendation of the first, the great Chief Justice of Louisiana, Judge Martin, when he said: “ All those who minister in the temple of justice, from the highest to the lcwest, should be above reproach and suspicion. None should serve at its altar, whose conduct is at variance with his obligations.” The trust to enforce this lesson of wisdom lias been confided to the Supremo Court, and although the task is unpleasant, it must be performed impartially and fearlessly. Relator’s petition contains several other specifications of a serious character against tho respondent, but as the larger number of these charges involve rnlings and other matters which have already, and in a different form, been submitted for judicial action before this court, and as the foregoing considerations so forcibly point to the irresistible conclusion of the removal of the defendant, it becomes unnecessary to discuss any of these additional charges. After the evidence had been taken, and ten days of the trial had been consumed in hearing it, the defendant filed a plea in bar, denying the authority of the court to entertain charges of acts alleged to have been committed by him prior to the month of August, 1884, at which time he had been reappointed judge by the executive of the State, on the ground that said alleged acts had been' committed under a different and distinct term of office, and under a different and distinct commission. Considering the nature of the answer which the defendant had filed, and in which he had joined issue on the merits of all the charges brought against him, considering the stage of the trial at which that defense was invoked, and considering the tone of a letter, which he had — 162 — •written to the Attorney General, urging the latter to institute this proceeding, in which he manifested his intention to waive all matters -of form, as well as his desire that that officer should assume that there was prima facie evidence of every charge that was made against him, it must be confessed that the resort to such a plea was a great surprise to all, that it came rather late, and that itwas exceedingly ill-advised. The entire absence of any argument in its support by the defense, -either orally or in writing in the brief submitted by counsel, is a tacit acknowledgment of the innate weakness of the plea as a means of defense. Leaving open the question as to its applicability to any of the charges which are not discussed in this opinion, it is quite plain that it cannot apply to the matters and things charged in connection with the fund accruing to the Quiazzaro minor, the only charge which has been herein discussed. This charge is formulated on a continuity of acts not publicly known before July of the year 1886, and alleged to have been committed under both terms and both commissions of the respondent judge. Hence the plea falls under its own weight. And the charge of malfeasance and gross misconduct having been fully made out by the evidence, the proper decree must he entered. It is therefore ordered, adjudged and decreed that the respondent, Henry L. Lazarus, Judge of the Civil District Court for the parish of Orleans, Division E, he, and he is hereby removed from said office ; that said office he and is hereby declared to he vacant, and that the said defendant he condemned to pay all the costs of these proceedings. And it is further ordered that a certified copy of this judgment he forwarded to liis Excellency the Governor of the State of Louisiana.