The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-04-15
TIE WlCKLlFFE CASE.
Decision of Judge Abell-T he
Demurrer CVerFuIed.


District Court, delivered the following opinion on
the demurrer filed by Mr.. Wicklife's counsel
against the indictments against him before this
courtiT The trial of Mr.. Wicklife will shor ly come
up.
State Of Louisiana VS.. G. NJ. Wickfs-First
District Court The accused, as auditor Of public
accounts, is charged in three several informatons
Nos. S79. $50 and S6l, of the docket of the court
with violation of the 25th section of an act of
the General Assembly, entitled "an act to regulate
the Office of auditor OF public accounts, approved
the 18th of March, 1866" That section reads as
follows:
"SEC. 25. BE ii further enacted, etc., That
should the auditor knowingly issue any warrant
upon the treasurer not authorized by Law, or
should he wifully neglect or refuse to perform
any duty enjoiDed by law, or be guilty Of any
oppression or extorton, or receive any fee or
for the perIos%1aan@se @ Color Of his Office
knowingly do any act not authorized or in any
other manner than ia required by law, or ile-
gslly use or misspply any money belonging to
the State, he shall be deemed guilty of misde-
meanor in Office, and upon conviction be fined
not more than one thousand dollars and imprisoned
no. more than five years, and be dismissed from
Office"
To these several informations the accused has
filed general demurrer, and il is conceded by
counsel that the same principle of law applies to
all three iDformations. Mr.. Archibald says:
demurrer in civil cases has the effect of opening
the whole record Of the court, and therefore, upon
arguing It the defendant may table objections as
well as to the jurisdiction Of the court where the
indictment was found as TO the subject matter OF
the indictment itself.
The demurrer wss argued with great ability
and Of length. For the demurrant 1t was con-
tended that he, being constitutional officer, re-
movable by impeachment. is not liable to be in.
dicted and punished by ordinary courts OF law for
criminal offenses, particularly for violations of
official duty until after the high court of impeach-
mi n
England where the political and judicial power is
blended in cases like the one at bar, Parliament.
sitting as a court of impeachment, has power to
try and punish high crimes and miscemeanors.
In that country the law would be with the demur-
rant. But by the 9th article of the Constitution
of 1868 the court of impeachment is limited to a
judgment of removal and disqualification from
holding Office. That article is in these words:
ARTICLE 81. Judgment in case of impeachment
shall extend only to removal from office and dis
qualification from holding any Office of honor, trust
or profit in the State but the convicted parties
shall nevertheless be subject to trial and punish
ment according to law.
In this article the supremacy of the law is indi.
Gated against Offending officers, and the impesch.
ing power expressly limited to removal and dis
qualification from holding office. The doctrine of
exemption and immunity as officials, cOntended
for by the counsel, may be well for the person of
the king, who by fiction is the source of power T;
in q constitutional and representative government
such doctrines cannot be seriously entertained. |
am clearly of the mind that the State has power to
vindicste her law, and may proceed TO punish Of.
fetal delinquency by Indictment, trial and punish.
ment according to law before or after impeach.
ment.
1t is further contended that the act Of the 18th Of
March, 1855, entitled, Z" an act to regulate the
Office of auditor of public accounts" was repealed
by an act of The General Assembly, approved l4th
of March, 1885, relative TO crimes and ofienses.
But one day intervened between the approval Of
these two acts. The Legislature could not have
IL - 81 k-ff 1,..
without In eny nsnnsr referring 70 IT, 10 not, ala
the repeating clause OF the second act contain
words which would have that effect? Certainly
not. The act of the l4th March relates to crimes
and ofienses generally. The act of the 18th was
special law applying to single individual, regu.
latng the duties of that officer and afxng penal.
ties for violating his official duty.
/ Being but one auditor 10 the State, there Is no
class OF persons to which the act can apply. IL
necessarily follows that the act is neither local
nor general but in the highest sense q special
law. The act regulating the duties of auditor has
Teen in force for about twenty years. as the only
Law regulating the Office of auditor frequently I'D.
Indicated upon by the Supreme Court, and at the
present time the only law under which an auditor
could do an official act. am of the opinion that
the act is not repealed either by express words
or being contrary to any existing laws In force
upon the statute books at the time of the adoption
of the Constitution of 1864 and '6s. II so, they
have received the sanction of these instruments in
the 149th article of the Constitution of 1868 and
tie corresponding article in the Constitution Of
1854, in these words All laws 10 force al the
time of the adoption of this Constitution and not
iDcoI sistent Herewith shall continue as if the
same had not been adopted. II remains to con-
sider whether this law is in conflict or inconsis-
tent with the existing Constitution of the State.
1t 10 useless to consider the origin Of the office,
the manner OF its original creation. II the law
governing it, under which this prosecution is had,
was in force at the time of the adoption Of the
Constitution of 1861 it is still in force, unless re-
I L. fa H. -
The Constitution ITSELF 1t is not contended that it
has been repealed since the adoption Of the Con.
stituton, but il is contended that il confets with
il. IL is contended that the mode of removing
Com ttitutonal officers is in conflict with the last
clause Of the 25th section of act regulating the
Office Of auditor OF public accounts. which is in
these words " He shall be deemed guilty or mis-
demt amor in Office, and upon conviction be fined
not more than one thousand dollars. and impris-
oued not more than five years, and dismissed from
Office" This. il is contended, conflicts with the 97th
article of the Constitution Of 1868, which declares
that Judgments in cases OF impeachment
shall extend only TO the removal from Of
ice and disqualification from holding
any ofice of honor, trust or profit in this State
but the convicted parties shall, never theess, be
subjected 10 indictment, trial and punishment, &C.
cordiDg to law" The power here reserved to
the courts of impeachment in no manner conflicts
delinquent officer; their jurisdiction differs from
that Of court of ordinary jurisdiction. The
object TO be attained, so far as removal is con.
cerned is precisely the same, viz: to place il out
of the power of an offending officer farther to dis
grace and plumber the State. The object to be
| obtained by the impeachiDg and addressing power
reserved to the Legislature by the Constitution,
and the law regulating the duty and responsible
ties of auditor of public accounts. reserved to the
courts, having SO essentially the same object,
that Of disabling auditors of public accounts from
| issuing unauthorized warrants and other acts OF
corruption and fraud enumerated in the act.
The proposition that the State during the ten
months adjournment Of the Legislature in each
| year would be requested silently to await the &C
| ton Of the court OF impeachment, while cor
rupt and dishonest auditor, if such We had, may
| with impunity flood the country with warrants
| drawn upon her treasury TO the order of Johr
| Does and Richard Roes, and other acts denounced
| TO protect the State against such frauds, ia Ger
tainly moDstrous and dangerous proposition.
| Believing that the law under which these pros
ecutions are had is wise. just and necessary, and
| that it has not been repealed, sbrogsted or sus
| pended the demurrer must be Overruled.
| Let the demurrer in the three several cases
Nos s79 $40 and ssl Of the docket Of this court
| be overrued.