New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-08-09
THE COURTS.
A Gold Bulling Transaction.

THE COURTS. st Il
A Gold Bulfing Transaction.
In the Eighth District Court yesterday,
William L. Catlin sued e. L. Barton, q
broker, for $4,000. Plaintiff alleges that he
bought in gold on an margin e ad1S frSm the
the sixteenth of March last. Plaintiff
alleges that the first intimation he had Of
the sale was on the twentieth Of July, and
contends that the sale must be
regarded as having taken place on
That time, at the then ruling rate, which
was l23ss. He claims that the difference in
the market rate on the sixteenth OF March
and on the twentieth of July would amount
to $1,000, for which amount he asks judg-
ment.
State ex rel Henry Hull vs.. James Gra-
ham, State Auditor.
Judge EmmersOn, presiding in this court in
the absence of Judge Dibble, has delivered
the following decision in the above case:
On the fourteenth of March, 1870 the
Charles lizard the sum of $2O, and
ordered the same to be paid "Out OF any
levee funds in the treasury" as cOnpensa-
ton for services and expenses as special
levee commissioners.
The act requires the payment to be made
by the Treasurer, "upon the warrant OF the
State Auditor" and took effect from its
passage.
See acts extra session, page four.
About the seventeenth OF March last,
demand was made upon the Auditor for his
warrant, under the act cited, and he refused,
but subsequently issued six certificates OF
Indebtedness for the amount of the apprO-
priatiOn. These are now in the hands OF
| the relatOr. who is the transferee of Anga-
r., lxxy1f, ft,Ia NU fA
| compel the Auditor to draw the warrant
| demanded.
The defense, after denying relatOr's right
| to mandamus, rests substantially upon
| two grounds, viz: That there is no appro-
| priatiOn upon which the warrant can be
| drawn, or no money in the treasury to pay
| it belonging to the levee fund, and that re-
| ceiying the certificates the relatOr has lost
his right to a warrant, If he ever had any,
and, therefore, must apply to the Legisla-
ture for relief
Mr. Graham, in his testimony, states that
| there are no levee funds in the treasury
upon which can he draw, unless he can draw
upon preliminary warrants issued by the
Board of Public Works, cOuntersigned by
the Secretary Of that Board. This does not
| deny the existence In the treasury OF leyee
| funds upon which the President of that
Board can draw, and under the act of Feb
ruary 25. 1870, No. 81, that officer is the only
person, ordinarily, who can perform that
duty. when payment is to be made for work
done or to be done upon the levees.
The duties Of the Auditor are clearly de-
| fined by law. Article four of the cOnstitu-
ton forbids drafts upon the treasury unless
in pursuance of specific appropriations.
The law regulating the duties of the
Auditor. makes it incumbent upon him to
| draw all warrants, except i'll cases especially
provided otherwise; rays Digest, p. 90,
sec. I76): and it prohibits from drawing,
when there are no previous appropriations,
! out of which payment is to he made.
| Ibid, D. 81, sec 1S4, when fund has been
provided by leg gislatIve enactment. it would
seem to be his plain duty to draw his war
rant whether the funds provided or their
| proceeds have or have not been received by
| the Treasurer. The fact of appropriation
| is the only one into which he is bound to
inquire, and not its results or legality, and
the question of cOnstitutionality can only
be settled by the Judiciary.
| The passage of the former act, occurred
at a date subsequent to that of the latter.
and being the last expression of legislative
| WILL must control it in whatever is conflict
ing 1t contains a specific appropriation for
| a specific purpose, to persons expressly
named to be paid out of funds already and
clearly provided and requires the Auditor,
not the President of the Board of Pub
| lie Works, to warrant for the amount.
| His duty is therefore manifest, and is purely
ministerial State VS.. Bordelon, Sixth An
nual, p. 6S
Does the issuance of the certificates alb
solve him from that duty.
| When the law recognizes a claim against
| the State, and no appropriation has been
made to pay it, the Auditor is required to
credit and settle it, and give the claimant
| the certificate of the amount thereof. Ray 8
| II: fn no
the only condition under which certificate
| can be given, viz: when there is no appro-
| priatiOn to pay recognized claim.
| Hence the issuance of the certificates in
! the case at bar was extra ministerial and
unauthorized, and did not abridge the
rights of the relator: nor did it change or
lessen the obligations of the creditor. With
| less force can it be argued that it destroyed
| the efficiency of the act and compelled the
relatOr to try his case over again before the
| Legislature. The decision of that body IS
| final and must be enforced in the manner
indicated by this act.
| Have any appropriations been made or
any funds provided, out of which the sum
exacted can be paid. If so, the relator is
entitled to relief, unless he has waved it by
accepting the certificates
| An act passed in 1867. raised fund for
levee purposes, and levied tax to meet the
| bonds then authorized. An act passed
February 25, 1870, already alluded to, en-
! titled AN act to provide means for the pay
ment of work done or to be done upon the
levecs of the State etc. required the issu
ance of bonds to the extent of $4,000, 900,
bearing eight per cent interest, and secured
| by a special tax OF One-fourth of one per
cent upon all the real and personal property
| of the State subject to taxation.
These were required to be sold at rate
of not less than ninety cents on the dollar,
and the proceeds to be turned into the
treasury, to be applied Exclusively to the
| nayment of claims for work done under
contract with the existing Board OF Public
| Works"
1t was competent for the Legislature to
| amend the act or to devote portion OF the
said proceeds to purposes not strictly within
| its limitations. That the services set forth
| in the Angamar act do not fall within the
restriction of the act of February "a, l am
not prepared to say. since the grant to the
! beIitfciaries is therein described as COM
pensation for services and expenses as
special levee commissioners.
| These certificates. being nothing more
! than a mere announcement of filed In
| debtedness can not be considered either as
payment or nOvatiOn, and having filed the
refusal TO issue the warrant, the Auditor Is
stopped from pleading his own error i'll
| defense.
The garnishment was vain and useless
| proceeding, but whatever effect 1t might
| have had, it can not now avail respondent,
as the debt which it was designed to secure