(173 La. 732)

#### PARISH OF EVANGELINE v. GUILLORY et al.

No. 30210.

Supreme Court of Louisiana.

Nov. 30, 1931.

Rehearing Denied Jan. 4, 1933.

R. Lee Garland, of Opelousas, and J. Hugo Dore, of Ville Platte, for appellant.

E. Herman Guillory, of Ville Platte, and Dubuisson & Dubuisson, of Opelousas, for appellees.

BRUNOT, J:

This appeal is from a judgment maintaining an exception of no cause of action and a plea- of prescription and dismissing plaintiff’s suit.

The suit is for moneys alleged to be due the parish of Evangeline which the defendant received, or should have collected, in his official capacity as clerk of court' for that parish, and for which he has failed to account.

The judgment appealed from is based upon the theory that the clerk of court and ex officio recorder is not the agent of the parish and, therefore, the suit is upon an ordinary open account, to which the prescrip-’ tion of three years applies. The learned jurist overlooked the fact that this is not a suit upon a stated account, but a suit for an accounting for fees of the clerk’s office, collected, or which should have been collected, by the clerk, during the period of time beginning January 1, 1920, and ending May 31, 1924, in excess of his salary, as cleric of court, and his office expense allowance, as fixed by Act No. 14 of the Extra Session of 1918. He received the fees only, by virtue of •his office and, therefore, in a fiduciary capacity, charged by law with the duty of accounting to the parish for them monthly. In this sense, he was constituted an agent of the parish, by Act No. 14, Ex. Sess. !of 1918, to collect the fees of his office and to deposit-them in the parish treasury monthly.. It .is our opinion that the right of the píáíntitf to recover from such an agent is barred’ only by the prescription of ten years if baí-red át-all. It would violate public policy, and to an extent actually disorganize1, góVerniñéñt, to bar a suit against a'public official for’the recovery of any part of--the public money• received by him in his official capácity) ex-3 cept upon grounds that do not admit of sferLous debate. We think that the following, atoo thorities, although not directly ■ in'point,:;are( more than persuasive of .the -correctness -of. our conclusion: Newlin v. New Orleans Public Service, Inc., 168 La. 794, 123 So. 328; Wall v. Colbert, 36 La. Ann. 883; Southern, Mut. Insurance Co. v. Pike, 34 La. Ann. 825; Board of School Directors v. Trimble, 32 La. Ann. 793; School Board v. School Board, 36 La. Ann. 806; Prudhomme v. Plauche, 27. La. Ann. 133; Tremoulet v. Cenas Heirs, 6 Mar. (N. S.) 541, 17 Am. Dec. 195; Bills v. Pittman, 152 La. 907, 94 So. 439.

The resolution of the. police jury, of-Evangeline parish authorizes .a suit for the recovery of fees, of the clerk’s office *collected,*by the defendant in excess of his salary and office expenses, and not accounted for by-him. The suit filed is for the recovery--of certain fees alleged to have been collected and not accounted for, as. well as certain! fees earned by the office which should hay-e been collected. Whether or not suit -for the uncollected fees was authorized by the reso-. lution is not material, at this time, for the allegation with respect to those actually *collected*was specifically authorized by;it, and the petition therefore sets forth a pauseoof action. , , ......

Eor the reasons stated the .judgment ap-' pealed from is avoided, and it is now- decreed • that the exception of no-cause 'Of action-and. *650the plea of prescription filed in this case are overruled, and the case is remanded to the district court to be proceeded with according to law and the views herein expressed, and the appellee to pay the costs of this appeal.