Mayor of Alexandria v. Williams , 35 La. Ann. 329 ( 1883 )

Tlie opinion of the Court was delivered by

Manning, J.

This suit differs from that of the same plaintiff against Heyman in several particulars, one of which is that the exception here made is to the capacity of the justice of the peace to sit in the cause, for the reason that he was a member of the town council that passed the ordinance imposing the taxes—in other words, the defendants recused'the Judge.

This is not one of the grounds for recusation recognized by our Codes, and we know of no reason why it should be. A member of the legislature, afterwards raised to the Bench, can construe laws passed by the body of which he was a member, and consider and determine their validity. Elevation into a judicial atmosphere is supposed to free one from the disturbing influences of legislative miasmas, and there is equal reason to believe that a village councilman will divest himself of the partisan feelings of that role when he sits in the judgment-chair of a justice of the peace.

It must be noted, the ground of exception is not that he acted as councilman and assisted in passing the ordinances, the validity of which is attacked, after his qualification as justice and consequent alleged vacation of his office of councilman (a point upon which we do not pass, and which was raised only in the answer) but that having been councilman when the ordinance was passed, he could not sit as judge to determine its validity, nor to determine the question of the legal composition of that body.

Upon the exception being overruled an answer was filed, pleading in defence inter alios the constitutional prohibition of suit which was properly set up in the other case in an exception.

The prohibition is express and emphatic, and of such character that a- court must take cognisance of, whenever pleaded, whether in the answer or by way of exception. In either way it effectually disposes of this litigation in its present form.

It is therefore ordered and decreed that the judgments of the lower court are avoided and reversed, and that each of the defendants now have judgment against the plaintiff as in case of non-suit upon the claim herein preferred, and that each recover of the plaintiff the costs of the low.er court and of this appeal.