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R. S. 2584- Act 19, 1878
Act 19, 1878, p. 43.
Ax Act to require all State, district, and parochial officers in this State,
whether elected or appointed, to take the oath of office and give bond, where bond is required, and cause the same to be filed in the proper office in the manner required by law, within thirty days after the receipt of their commissions, and to declare vacant any office where the officer elected or appointed to fill the same shall fail to comply with the requirements of this act, within the limitations therein fixed.
[Officers Must Make Oath and Give Bond Within Thirty Days.]
SECTION 1. That all State, district, and parochial officers of this State, whether elected or appointed, shall be required, within thirty days after the receipt of their commissions, to take the oath of office prescribed by law, and give bond, where hond is required, and cause the same to be filed in the proper office in the manner and as required by law.
--Failure To Do So Vacates Office.]
SEC. 2. That the failure of any officer to comply with the requirements of section one of this act, within the limitations therein fixed, shall operate a vacation of such office, and the Governor shall proceed to fill said office by appointment, as in other cases of vacancy.
--Must Be Done Within Thirty Days.]
Sec. 3. That any officer of this State, whether State, district or parochial, who has heretofore been elected or appointed to office, and who has failed to take the oath required by law, and to give bond, where bond is required, in accordance with existing laws, shall be required to take such oath and give bond, where bond is required, in accordance with existing law, within thirty days from the date of the promulgation of this act, and a failure to comply with these requirements, within the limitations fixed, shall operate a vacation of such office, and the Governor shall fill the same, by appointment, as in other cases of vacancy.
Sec. 4. That all laws or parts of laws in conflict herewith are hereby repealed.
Const., Art. 160; State vs. Montgomery, 41 An. 1087.
R. S. 2593-2595 USURPATIONS, INTRUSIONS INTO AND UNLAWFUL HOLD
ING OF OFFICE.
Const., Arts. 217-223. See Acts infra, this title. [Procedure in Such Cases.]
2593. An action by petition may be brought before the proper district court or parish court by the district attorney or district attorney pro tempore, and for the parish of Orleans by the Attorney General or any other person interested, in the name of the State, upon his own information or upon the information of any private party against the party or parties offending, in the following cases:
First-When any person shall usurp, intrude into or unlawfully hold or exercise any public office or franchise within this State; or
Second-When any public officer shall have done, or suffered to be done, an act which by the provisions of law shall work a forfeiture of his office; or
Third-When any association or number of persons shall act within this State as a corporation without being duly incorporated (Act 156, 1868, p. 199).
Guillotte vs. Poincy, 41 An. 333; State ex rel. Miller vs. Reid, 45 An. 162; State ex rel. Saizan et als. vs. Judge, 48 An. 1501.
The State through the Attorney General may bring suit against a de facto officer, without joining as plaintiff any claimant to the office in question, and without there having been any appointment made to fill the vacant office which the de facto officer is charged with having intruded into. State vs. Grandjean, 51 An. 1099.
See note to Sec. 2603. [Duties of District Attorney.]
2594. In the cases mentioned in section two thousand five hundred and ninety-three it is hereby made the duty of the district attorney or district attorney pro tempore of the parish in which the case arises, and for the parish of Orleans of the Attorney General, to bring action against the offending party or parties when so required to do. EService, Answer, Preference.]
2595. Service shall be made in such cases as are provided for in the foregoing sections, the same as in other civil suits, and the answer of the defendant shall be filed within the legal delays as in other suits; such cases to be tried by preference over all other cases, without being fixed for trial after issue joined.
See note to Sec. 2603.
R. S. 2596-2599
2596. When an action shall be brought by virtue of the provisions of this act by the district attorney or district attorney pro tempore or the Attorney General, as the case may be, on the relation or information of any person interested, the name of such person shall be joined with the State as plaintiff. [Fees Unlawfully Collected, Penalty.]
2597. Whenever such action shall be brought against a person for usurping or intruding into a public office, the district attorney or district attorney pro tempore or the Attorney General, as the case may be, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto, and in such case on proof that the defendant has received fees or emoluments belonging to said office, an order may be granted by a judge of a competent court for the arrest of such defendant, and for holding him to bail, and thereupon he shall be held to bail, subject to the same rights and liabilities as in other civil actions when the defendant is subject to arrest.
See note to Sec. 2603.
[Judgment, Execution, etc.]
2598. If the judgment be against the defendant, and rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office, and otherwise complying with the requirements of law, to take upon himself the execution of the office; and it shall be his duty immediately thereafter to demand of the defendant in the action all books and papers pertaining to the office.
[Refusal to Deliver Books, etc.]
2599. If the defendant shall refuse to deliver over such books or papers upon demand, he shall be deemed guilty of a. misdemeanor and prosecution therefor by indictment or information, and upon conviction fined not less than two hundred dollars or imprisonment at the discretion of the court, not exceeding one year.
R. S. 2600-2601 [Recovery of Damages.]
2600. If the judgment be rendered in favor of the person so alleged to be entitled, he may recover by action the damages which he shall have sustained by reason of the usurpation by the defendant of the office from which such defendant has been excluded.
The successful claimant is entitled to the emoluments and perquisites of the office illegally held by an intruder. State ex rel. vs. Holmes, 43 An. 1185. [All Claimants May Be Joined, etc.]
2601. Where several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons in the same action in order to try their rights to such office or franchise.
Guillotte vs. Poincy, 41 An. 333; State vs. Reid, 45 An. 162. [Defendant Liable in Damages.]
2602. When defendant, whether a person or a corporation, against whom such action shall have been brought, shall be adjudged guilty of usurping or intruding into, or unlawfully holding or exercising any office, franchise or privilege, judgment shall be rendered that such defendant be excluded from such office, franchise or privilege, and also that the plaintiff recover costs against such defendant, and such damages as are proven to have been sustained.
State vs. Holmes, 43 An. 1185. [Certain Laws Repealed.]
2603. All laws or parts of laws in this State touching on the subject of quo warranto, conflicting directly or indirectly with any of the provisions of this act, be and the same are hereby repealed.
Sections 2593, 2595, 2596, 2597, 2603 destroy the writ of quo warranto as a remedy “for the unwarranted exercise of public office,' " and substitute the appropriate proceclure by the Attorney General to test the right to exercise corporate functions claimed under any law of the State, citing R. R. Co. vs. Town of Kentwood, 49 An. 731; State vs. Flower et al., 49 An. 1199. See State er rel. Saunders vs. Kohnke, 109 La. 838, in which the writ of quo warranto is elaborately considered. [Appeals, Preference.]
2604. Appeals to the Supreme Court may be taken from any of the actions provided for in the foregoing sections, the same as in other cases. But all such cases shall take preference when they come before the Supreme Court over all other R. S. 2605-2606 cases in the order of trial, and shall be made returnable to the Supreme Court, either in New Orleans or at one of its sessions in the country, on motion of either of the parties. [Trial May Be in Chambers, etc., Jury.]
2605. All the cases coming under the provisions of this law
may be tried before a judge of the district in chambers, or at a special term called by said judge on legal notice being given the parties interested; and if required by either party, the judge may order a special jury, to be summoned according to law, to try such case.
VACANCIES. [Vacancies, How Filled, Municipal Officers.]
2606. Whenever a vacancy occurs in any office, State, parish, or municipal, in this State, now existing, or which may hereafter be created, from death, resignation, or from any other cause whatever, the mode of filling which is not provided for in the constitution, all such vacancies shall be filled, if they be State or parish officers, by appointment by the Governor, with the advice and consent of the Senate, which appointment shall be for the entire unexpired term of such vacant office. If the Senate be not in session at the time the appointment is made, the vacancy shall be filled by appointment by the Governor, which appointment shall expire on the third Monday after the meeting of the next session of the General Assembly thereafter, unless the time for which the vacancy exists expires sooner; and if the time of such vacancy has not expired, it shall then be the duty of the Governor to fill such unexpired vacancy by appointment, by and with the advice and consent of the Senate, and if it be a municipal office, the vacancy must be filled by appointment by the Governor for the unexpired term of the person whose office is so vacated (Act 27, 1868, p. 27).
See Acts infra, this title.