New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-05-28
sUPKEME COURT DECISIONS.

The State Of Louisiana eX rel John B.
Howard VS.. s. N. Burbank. Treasurer of the
Metropolitan Police Board-No. 2472, Ap.
peal from the Sixth District Court for the
Parish OF Orleans-Ludeling. c. J. The
appellee moves to dismiss this appeal for
reasons stated in his motion to dismiss the
appeal in the case of the State ex rel. Bur-
bank, etc. VS., Ant. Dubuclet, State Treasu-
rer, and additional reasons, to wit: because
the writ of maDdamus being an order is.
sued in the name of the State, no citizen is
authorized to intervene to thwart the exc.
cution of the will of the sovereign power.
Because an appellant can not plead ignO-
rance of the law, nor having neglected the
plain and specific remedy which the law af-
forded and affords. seeks the benefit of one,
which the law forbids, if appellant had any
rights" because the amount in dispute
does not exceed five hundred dollars-the
Judgment having been executed so far as
respondent had funds in his possession, and
respondent being now without funds exceed.
ing one hundred dollars"
We reclte the grounds stated in the mo-
ton, only to show the frivolous character
of the motion, which is Overruled.
One nineteenth day of October, 1869, John
B. Howard, agent, represented that he was
the ogner and holder of 800, 900 of Metro
politan Police warrants; that S. N. Burbank,
Treasurer of the Metropolitan Police Board,
ment of said warrants, and that said Burbank
refused to pay, although amicably requested
to do SO. He prayed tor writ of manda-
mus against said Burbank, etc. An alter
native writ was issued, returnable On the
twenty first of October, 1869. On that day
a supplemental petition was filed by
Howard, agent, in which he alleges that
'.since the fling of this suit relator Is In
formed by defendant, and verify believes,
hat Il of opf hol nGSEeSSlOn
amount of $500, 600 specified In plalntlHs
original petition Defendant is cOnstruc-
lively in possession, as he alleges, OF the
sum of six hundred and thirty two thousand
four hundred and twenty-three dollars ana
forty-tour cents 1852 423 AZ, to the posses
sion of which he Is entitled AZ treasurer, the
same being the amount to the credit of the
Metropolitan Police Board, placed in the
hands of Antoine Dubuclet, State Treasurer,
By the city of New Orleans" through its
Fiscal Agent. Defendant alleges that he has
made amicable demand of said Dubuciet Tor
s632 423 A, and has been refused. Relator
prays for writ to command Duouclet,
Treasurer, to deliver over to Burbank the
sum aforesaid, in lawful money OF the
United States. aud that on the receipt OF
this sum by Burbank. he be commanded to
pay to petitioner 100000. On this applca-
tion is indorsed the following consent: De
fendant accepts service, waving citation.
and consents to the order herein prayed
for"
The Judge quo ordered Burbank to pay
to Howard, agent. 500, 600 on receiving the
s632 423 "A from Dubuclet, Treasurer,
On the same day the following judgment
was rendered in the case, to wit:
.'In this matter, the Court considering
the second and amended petition filed
this day, and considering further
the written waiver Of citation and
consent that the order prayed for be
granted Immediately, 1t IS ordered that
the foregoing judgment this day rendered
and signed. be amended to read as follows,
to wit: ut is ordered and adjudged that
S. n. Burbank, Treasurer of the Metropoll-
tan Police Board, be commanded forthwith,
on the presentation of the warrants men
toned in said amended petition for the sum
of five hundred and eighty thousand dollars,
to pay to J. B. Howard the sum Of five hum
dred eighty thousand dollars, IN lawful
money of the United States. in lieu OF SAID
| warrants, with costs OF suit, or as mlcn as
may remain in his hands, on account OF the
amount of the judgment after deducting the
judgments rendered in this court in the
suits of the State on the relation OF Waiter
Pugh and of J. Davidson and j. ID. Hill vs.
the said Burbank, and other judgments on
mandamus, rendered prior to this day or on
this day. Judgment rendered twenty 'hrst
October, 1862"
The proceedings in this case are extra
| ordinary and anomalous. John B. Howard,
agent, without naming his principal, asks
| for a writ of mandamus to compel an ofncer
to perform an alleged ministerial duty. on
the day fixed for the trial of the rule nlsi,
the relator comes into court with an
amended petition in which he AYERS that the
defendant has not in his possession the sum
of 5000 600, as stated In his original petition,
ha MI
| that he is constructively IN possession OF
much larger amount, which is in the actual
possession and under the control OF the
| State Treasurer, and prays that Drbuclet,
| Treasurer, be ordered to pay the amount to
Burbank, and that Burbank be ordered to
pay relator, when he receives the money,
and subsequently during the same day
| Howard increases his demand against Bur-
| bank from 100000 to five hundred and
| eighty.two thousand dollars.
And the Treasurer, Burbank, cOmplacently
consents to the order, although it appears
| from the sworn statements OF Howard, re-
| Iator, that he, Burbank, had Informed the
relator on the twenty-frst OF October, 1869,
that he did not have the money In his pos
session, although he thought he was entitled
| to Its control and custody.
| An inspection of the record in this case
convinces US that the proceeding between
| Howard and Burbank was fictitious and
| col!usive. Courts of justice are to decide
| on real contest; they are never to De used as
| instruments to work injustice" l Mart. p.
| ol. The writ of mandamus in this case was
not necessary, for the defendant was wiling
| to do what was asked OF him, but he had not
| the means until after he had received the
| money from the State Treasurer. And the
law never contemplated that one creditor
should get q preference over another by
applying for writ of mandamus to com
mand an officer to pay a sum OF money out
of funds to be thereafter received by him.
This is degree of diligence not favored or
countenanced by the law.
1t is, therefore, ordered that the Judg-
ment of the District Court be avoided and
reversed, and that the application for the
writ of mandamus be dismissed, with costs
of both courts.
State of Louisiana ex rel. A. Willoz, 8: N.
Burbank. Treasurer Metropolitan Police
Board No. 2472. Appeal from the Fifth Dis
trict Court, parish of Orleans-Ludellng,
G. j. . :: 49,
holder and owner OF one hundred ana
thirty.two warrants, issued by the chlef
clerk of the Board of Metropolitan Police
(for the pay of the police organized under
the provisions of an act entitled an act to
establish Metropolitan Police District, ETC.,
on s. N. Burbank, the treasurer OF SAID
board, VINO has accepted the same for pay.
ment, forming in the aggregate sum OF
nne thousand nine hundred and ninety
nine dollars and seventy-tive cents, as ap-
pears by said warrants, which are them
selves annexed as parts of this petition;
that said warrants being due, petitioner has
applied for payment of the same to said
Burbank, srho stated that he had no funds
at the time to nm meet sn.or the h.s same; e.
bis oossession to the credit of