The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-04-15
THE WICKLIFfE CASE.
Decision of Judge ASen-1 he
Demurrer CVerrulEd.

against the indictments against him before tEis
courtiThe trial of Mr.. Wicklie will shor ly come
up.
State of Louisiana We. G.. M. Wckliffe-First
District Court The accused, as auditor Of public
accounts is charged in three several informations,
Nos. S79 $50 and $751; of the docket Of the court,
with violation of the 25th section Of an act of
the General Assembly, entitled ian act to regulate
the ofice of auditor OF public accounts, approved |
the 18th of March, 1856" That section reads as
follows:
"sEc. Is. Be it further enacted, etc., That
should the auditor knowingly issue any warrant
upon the treasurer not authorized by Law, or
should he wilfully neglect or refuse to perform
any duty enjoined by law, or be guilty Of any
oppression or extortion, or receive any fee or
reward for the performance OF any duty not al
lowed by law or should he, by color Of q bis offics
other manner than is required by Law, or He
gslly use or misapply. any money belonging TO
the State, he shall be deemed guilty OF q mIsde,
mesnor in Office, and upon conviction be fined
not more than one thousand dollars and imprisoned
DO. more than i've years, and be dismissed from
cfice."
flied q general demurrer, and it is conceded by
counsel that the same principle of law applies to
ali three informstions. Mr.. Archibald says: A
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
we'll as to the jurisdiction OF the court where the
indictment was found as to the subject matter OF
the indictment itself. 49,
The demurrer was argued with great ability
and at length. For the demurrant it was con-
tended that he, being constitutional oncer, re-
movable by impeachment, Is not liable 10 De IN
dcted and punished by ordinary courts OF law for
criminal offeDses, particularly for violations OF
Official duty until after the high court Of impesch
! mept had taken cognizance OF the matter. In
| England where the political and judicial power is
bleI ded in cases like the one at bar, Parliament,
sitting as a court of impeachment, has power TO
1 nd mlSCemedlOrB.
In that country the law would be with the demur.
rant. But by the 97th article of the Constitution
| of 1868 the court of Impeachment is limited to
/ iudRment. 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 ofice OF honor, trust
or profit in the State. but the convicted parues
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 lmpeach-
ing power expressly limited to removal and dis,
| qualification from holding Office. The doctrine Of
exemption and immunity az officials. COMMENDED
for by the counsel, may be well for the person OF
the hing, who by fiction is the source OF power
in constitutional and representative government
such doctrines csnnot be seriously entertained. L
am clearly of the mind that the State has power to
yindicste her law, and may proceed 70 punish Of
hcial delinquency by Indictment, trial and punish
ment according to law before or after lmpeach'
| ment. -,
tis further contended that the act Of the 18th OF
| March, 1856, entitled, " an act TO regulate the
Office of auditor of public accounts" was repealed
| by an act of the General Assembly, approved l4tn
Of March. 1855. relative TO crimes and offenses.
| But one day interviewed between the approval o
these two scts. The Legislature could not have
intended to repeal the act of the previous day
S1sHHsr Gsr..s:.s .s--.. .aaepd aa...-
words which would have that enect! Certainly
not. The act of the l4th March relates to crimes
alIu ha act n
special law applying to single individual, regq
latipg the duties of that officer, and sfhxing penal
ties for viol ating his official duty.
Beina but one auditor in the State, there Is M
class OF personsto which the act can apply;
necessarily follows that the act is neither loca
| nor general, bat in the highest sense a speca
law The act regulating the duties OF auditor ma
been in force for about twenty years, IS the onl,
law regulating the ONCE oi auditor Irsquenuy az az
| present time the only law under which an sudito
| could do an Official act. am of the opinion tha
| the act is not repealed, either by express word
being contrary to any easOs ~ ah ,b "a lSio
| OF the Constitution of 1864 and '6S. III 80, the
have received the sanction of these instruments
the l49th article of the Constitution OF 1868 an
tie corresponding article in the Constitution
1854 in these words All laws In force at tn
time of the adoption of this Constitution and no
inconsistent Herewith shall continue as II u
ssme had not been adopted. 1t remains to col
- lder
tent with the existing Constitution Of the State.
1t Is useless to consider the origin OF the once
the manner of its original creation. II the ia,
governing il, under which this prosecution is haI
n | was in force at the time of the adoption oil u
Constitution of ls6S it is still in force, unless T,
|, pesled by q subsequent law, or is IN conflict VIII
The Constitution itself. 1t is not contended that
}. has been repealed since the adoption OF the Col
stitutiop but il is coDtended that II conflicts wit
il. II ia contended that the mode OF remoyn
| Constitutional officers is in conflict with the la
clause of the 25th section OF an act regulating u
Office Of auditor Of public accounts. which Is
|. these words: :" He shall be deemed guilty OF mi
demta in Office, and upon conviction be hne
NOT more than one thousand dollars, aud impri
}. oned not than five years, and dismissed iro
J. oHiceD This it is contended conflicts with the 81
article of the Constitution or 1868, which cecar
that "judgments in cases OF lmpeschme
n | shall extend only to the removal from o
n fee, ard disqualification from holdlr
auy Office of honor, trust or profit in this state
but the convicted parties shall, nevertheless,
T. subjected to indictment, trial and punishment a
cordiug to law" The power here reserved
G. the courts of impeachment in no manner conhic
with the law that indcts, tries and punishes
e. delinquent officer; their jurisdiction differs fro
that of a court Of ordinary Jurisdiction:
object 10 be attained, so far as removal L: co
Z. cefned is precisely the same, viz: to place II
s. of the power Of an offending officer farther 10
grace and plunder the State. The object to
& | obtained by the impeachiDg and addressing pow
reserved TO the Legislature by the Consu1ntio
X and the law regulating the duty and responslo
ties of auditor of public accounts, reserved 10 !
courts. having SO essentially the same ooJe
on that of disabling auditors of public accounts III
in issuing unauthorized warrants and other acts
:. corruption and fraud enumerated in the act.
=. ~ The proposition that the State during the
IT. months adjournment Of the Legislature IN ca
he vesr would be requested silently TO await the
his tion OF the court of impeachment, while c
ma rupt and dishonest auditor, if such we had, n
10 with impunity food the country with ware
go drawn upon her treasury to the order OF u
70. Does and Richard Roes, and other acts denounc
ice TO protect the State against such frauds, Is
to- tainly monstrous and dangerous proposition.
WI Believing that the law under which these pl
ecutons are had is wise. Just and necessary
that it has not been repealed, abrogated or
IA pended. The demurrer must be oyerruled.
ant Let the demurrer in the three several ca
Nos. e79. $50 and ssl Of the docket Of this CO
let be overrnled.
on