New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-11-29
THE COURTS.
Eighth District Contributing Debt Of
the State. ls

| Debt OF the State.-Ihe following - the
full text Of the decision rendered by Judge
Dibble in this case yesterday:
This is an application for the writ Of man
damus The petition sets forth the terms
of the act approved March Is, $50, ITO
provide for the payment or funding of the
| floating debt of the State by the issue and
sale or exchange of State bonds" AYERS
that relator is the holder of warrants and
other evidences of State Indebtedness, ad-
iusted in due and legal form prior to April
/, 1870, to the amount OF ninety-twO thou
sand eight hundred and eighty {$928 dol
| lars Relator insists that the third section
| of the act AFORESAID entities him to have his
| said warrants exchanged for bonds authOr-
lied to be issued by said law, at the rate Of
| seventy-two cents on the dollar. Hsaileges
demand and prays for a mandamusto COM
| pei the board Of liquidation to make ex-.
| change accordingly.
The return made for respondents by the
| Attorney General denies the right # rclatOf
| to have such exchange, because is dis
| cretiOnary with respondents under the act
referred to, whether they exchange or not,
which discretion they are exercising to the
best interests of the State of Louisiana and
all other parties concerned"
| The case was submitted upon briefs care
| fully prepared The facts are not disputed:
the only question to be decided is one OF
law.
This act for funding the floating debt directs
| the Governor to issue three millions of bonds;
| constitutes the Citizens Bank fiscal agent
| for this purpose, and names the Governor,
| the Auditor of State, and the PRESIDENT Of said
bank board of liquidation, and authorizes
| them to sell the bonds, after notices for pro-
posals, in New York, London, Paris Hamburg
| or Frankfort. But the bonds arenOt to be
| sold for less than seventytwo certs On the
| dollar The third section OF the act. whose
Interpretation ia now sought, is as follows:
THAT if at the expiration Of tie thirty
| days from and after the passage % tins act,
! the said board Of liquidation shall not have
| sold the said bonds in accordance with the
| provisions of the second section q this act,
| then and in that case they are hereby au-
! thOrized and empowered to exchange the
| aforesaid bonds at the rate Of one hundred
| dollars in bonds for each and every seventy
| two dollars OF all outstanding evidences Ofin-
debtedness against the State of louisiana,
| which may have been issued in accordance
with law, prior TO the passage of this act"
| The bonds were issued, two millions
| were sold and the proceeds were
applied to the payment of the floating debt,
| to that extent. /. The remaining million has
not been disposed OF. Thirty Gays have
| elapsed and the relator claims tie SIGHT to
| exchange his warrants for bonds st the rate
| aforesaid. Has he such right aid can
| such right be enforced by writ cf man.
! damus
| The relator contends that thh,ssection
| three is mandatQry: that it clsrgps the
| board of liquidation with a ministerial duty
| and leaves them no discretion in the premi-
| ses; that thirty days having elapsed it is
| their duty to exchange the bonds at tle rate
| named.
| The words authorized and empowered"
| used in this statute, should be interpreted
| by the same rules applied to the coastruc-
| ton Of laws III which the words ''Inay" and
| shall or must, or equivalent IMPRESSIONS
| occur. 9@
| | find this to be the settled rule of con-
| struction: The permissive word mGy is to
| be understood as meaning must, mandatory.
| First, when the law is intended to impose a
positive and absolute duty, leaving no dis
erection to those charged with its execution.
| Second, when such construction is necessary
| to give effect to the clear policy and inten-
ton of the Legislature. Third when the
| act authorized to he done is for the public
| good, or when the rights Of individuals de-
pend thereon. Supervisors vs.. United
States, 4 Wallace 435; Thompson We. Car
roll, 22HOward 40; Smith on construction,
| 724: Minor VS.. Mechanics Bank, etc, I Peters
| GA. In this case Mr.. Justice Story said that
| no general rule should be laid down, further
than that exposition ought to be adopted,
which will carry into effect the true intent
and object of the Legislature in the enact
ment
The object of the statute under discuss ion
| was two-fOld: first, to relieve the finances OF
the State by funding the floating debt con-
tracted prior to April, 1870; second, to re-
lieve such creditors by providing other
means for their payment than the ordinary
receipts of the treasury. 10 that end the
issuance of bonds is directed. as aforesaid,
au1 fiscal oUapf and hnorJ Of rn. 4 fiOu
are named for the manipulation of the fund.
This board, SO constituted, is vested with
large discretionary powers. They are to
determine when and how the! shall sell the
bonds. provided they do not sacrifice more
than twchty-eight per cent off the face
thereof. But having discretion about sell
ing, are they mere ministerialoficers in re-
spect 10 the exchange contemplated in
certain eventi think not.
Section three, considered in connection
with the whole law, does not impose the
positive and absolute duty of exchanging
the bonds with the creditors. The previous
section does not require that. the sale be
made within thirty days, but here it is pro-
vided that after that time the exchange may
be made al the rate of sevelty-two per
cent.
The construction urged by the relator is
not necessary to give effect to the purpose
of the law. The public good sought to be
accomplished was the relief of tie treasury.
The benefit intended to be conferred upon the
creditor was n just satisfaction d his claims
by payment to him of the amount justly due
him. That he should receive binds Of the
State, after thirty days, at he rate of
twenty-eight per cent discount, j not neces-
sarily in contemplation of such tunding and
liquidation measures.
If the law does not specifcall, direct the
exchange to be made, as now sought to be
effected land it does mott; and f the pub
lie good is not involved in such ALTON land it
is not for the highest rate is hat good).
then the words authorized and empowered"
are not mandatory, unless rel.tor has a
right to such exchange.
No man has right to get aIother's pa
per for less than its market v,lue. 1t is
worth what it will bring. The holder of
the floating debt of the State, die prior to
the first of April, has right b be paid.
That right is not denied. He nav 90 to
the State treasury and demand cash, or he
may look to the board of liquidation afore-
said to be paid from the proceeds of the
bonds, or in bonds at such rate ashley may
be justly worth.
The relater argues that the ward author
lied in section three must be considered
mandatory because it is used inthat sense
in section two. The board of liquidation
are authorized to sell, etc. Prblic good
and individual interests are inv.lved and
the authority to sell is an order to sell.
But words or word may be Used in an
entirely different sense in different parts of
law. "The same words have lOt neces-
sarily the same meaning ATTACHED to them
when found in different parts Of the same
instrument. Their meaning is controlled
by the context" Marshall, c. j. S Pet, I;
Vattel B., , c II; Story on Constitution,
section asa.
This case does not differ materially from