New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-07-23
THE COURTS.
Eight, District Court.

State of Louisiana ex rel. Francis Feray
VS.. Hugh ]. Campbell, State Land Regis
ter-In this ease Judge Dibble rendered
the following decision, ON the eighteenth
instant: -
This is an application for, mandamus to,
compel the Register of the State Land Office
to entercertain tracts of public lands. The
petitioner AYERS that the relator in his own
behalf, and as agent for other persons
named, applied to the respondent to enter
various tracts Of land described but that
the respondent refused to comply with his
request He AYERS that it is the duty of the
Register to SO permit him to SO enter the
said land upon his complying with certain
forms, which has been done.
The respondent makes return that the
mandamus ought not to issue, because the
law regulating the duties of his Office ex-
pressly vests him with discretionary powers
in the premises. He specially AYERS that
the relator did not and has not furnished
the necessary aifidavits and evidence pre-
requisite to the entry ct the land desired by
him
A large amount of testimony was taken
on trial, enabling me to see clearly the pro-
priety Of the view have taken.
The law under which the relator pro-
ceeds is found in section fourteen OF an act
to reorganize the Land Office, etc, ap-
proved March Is. 1870. It reads as follows:
Sec. Ii. Be it further enacted, etc, That
the public lands donated by Congress to the
State Of Louisiana, which are subject to reg
ular tidal overflow, designated as ''swamp
or overfiowed lands" within the intent OF
the several acts Of Congress relating thereto,
which have been approved to the State OF
Louisiana by the general government, as
swamp and overfowed lands, shall be snb
.ject to entry at the rate of twenty five cents
per acre provided, That satisfactory proof
4 AZ - Al. L.
Office that any land sought to be purchased
under the provisions of this section is SUBJ
ject to regular tidal overflow.
The controversy between these contestants
arose from the fact that the respondent re-
fused to enter the lands sought by relator
because, he alleges, he was not satisfied with
the proof presented. The section above re-
cited certainly vests the Register with dis
cretionary power to determine the suffi-
cheney of the proof offered. He insists that
he can not be controlled in this discretion
by judicial process
1t is the general rule laid down in the
books that the writ will not 90 to an officer
charged with public duty to compel him
to do an act when the law vests him with
discretionary power. This rule was broadly
stated in the case of Louisiana College VS..
State Treasurer, I'd La. 1874. There the
court say that the officer can not be COM
PEELED to do an act contrary to his opinion
when the law says that opinion is the guide
he must follow. But, perhaps, this rule
has,. and should have its exceptions. The
discretion vested i'll ministerial officers
should not be considered arbitrary; it
should be judicial discretion. Our consti-
tuition provides that the courts shall remain
open to the citizens of the State, who
shall have adequate remedy for injury to
their lands, persons or regulations. 1t there
fore seems the better doctrine that minis
terial officer might be compelled by writ OF
mandamus to perform an act, though the
law has vested him with discretion, If he
has exercised that discretion in an arbitrary
and unwarrantable MANNER. and the com
plainant has no other adequate remedy.
But the evidence l have examined does
not make out such a case. 1t appears that
this respondent had been but recently ap-
pointed when this difficulty, occurred. He
found. or believed that he had found irreg
ularities in the manner of entry and sale of
swamp lands. The usual form of applica-
tion and affidavit upon which the Office had
been accustomed to enter lands did not
seem sufficient to him. He. therefore. de-
liberated and got up a new blank, with a
view TO requiring stiicter proof Of the con-
dition of the lands sought. This additional
caution seems to be justified by the evil
dence of irregularities in the Office offered
by the respondent. '' t.A 1
Soon after the respondent was appointed,
this relator applied to him to enter and pur
chase the several tracts described in his
petition. This application was made in the
form. and was accompanied by the affidavit
formerly used The Register declined to
act at once: subsequently ne required the
use OF the new form. and the production of
the additional proof thought by him to be
necessary. The relator was dissatisfied,
and sought relief III this court.
There was no ire egularity shown in the
proceedings OF relator. 1t is simply his mis-
fortune to have offered proof which he had
reasonably supposed would be sufficient,
but which proved not to be so. by reason OF
the change l have detailed. But it is not a
case for mandamuS against the respondent,
who seems to have desire to act in the best
interests of the State. -
1t is therefore ordered. adjudged and de-
creed that the peremptory writ OF man.
damus be retllsedat REALTORS costs.
Suit for Damages.
William Hickord VS.. Richard Behan.-In
this case, plaintiff alleges that on the four
teenth of April 1870 Arthur Behan the
minor son of Richard Behan. struck and
thrust the sharp point of pair of scissors
into the right eye of William Hickord, peti-
toners son, by which the eye was put out,
although he had the best medical attend
ance. 1t is alleged that the sufferings of
the boy were very intense, and fears were
entertained that he would also lose the
other eye. For this the plaintiff claims in
his own person, damages in the sum of $4,000.
Petitioner further claims, in right of his i'll
jured son, the sum of $4,000 damages,
making the full amount OF $4,000, Tor
which he asks Judgment. .., ...