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

and issuing the same to the injury of petit
toner, and that after due proceedings said
mandamus be made peremptory, etc.
The alternative writ was issued as prayed
for; subsequently q supplemental petition
was filed alleging that the city of New Or
leans had placed in the hands OF the state
Treasurer seventy Thousand dollars and up
wards to pay the police in said city. Ihat
the Board of Metropolitan Police has,
without cause, refused to receive SAID
sum from said State Treasurer. and to Apply
the same to the payment OF said city pollce,
aud that it still refuses to do so. He prays
that said Metropolitan Police Board:
through its president, Oscar }. Dunn, and
its mem bers (namiDg them), be commanded
by maudamus to receive SAID sum OF money
from the State Treasurer and to apply the
same to the payment of petitioners war
rants in preference to all other warrant
holders as first applicant etc:
An exception was filed, which we deem
necessary 10 notice. BuIbanks 5 answer Is
simply general denial.
The answer of the Board OF metropolitan
Police averled that the apportlonment OF
expenses for the support of the Metropoll-
tan police having been made BY the ooaid,
the city of New Orleans was assessed at The
sum OF $so5,635. The city offered to pay the
said assessment to the State Treasufer, pro-
yided the board would, by resolution, au-
the city bonds bearing seven per cent Ia,
terest, which proposition the board refused
to accept, Oh the ground that they had no
authority, and for other reasons communl-
Gated to the State Treasurer OF the seven
teenth of July, 1863.
On the nineteenth of October the state
Treasurer Dformed the board that he had
received frv b the city SSO5, ,635 of the said
bonds, and had sold them at large dis
count tor account of the Board OF Metro.
polltan Police, and presented to them his
account of said funds for their approval ana
acceptance.
The board thus called upon to approve or
disapprove an account, have exercised thelr
discretionary power by refusing to approve
said account, leaving the difficulty yet
pending and unsettled between the State
Treasurer and the board. That by reason
of these obstacles the money, in the nands
of the Treasurer of the State, has not been
transferred to the Metropolitan treasury,
which is now empty. -
That no mandamus can issue to pubic
officers, or public bodies, to perform any
act where they have discretionary power.
That there being no money IL their
treasury, a mandamus to pay money would
be a vain thing, aud on that ground can not
be granted.
That d mandamus commanding your re-
spOndents to receive the amount tendereo
by the State Treasurer, would be COM
mard to the board to ratify the receipts,
sale and discount of the city seven per cent
bonds (which is expressly forbidden by act
No. 40, 1861, and would involve the board
in heavy responsibilities, and substitute
the Judgment OF the court to the judgment
of the board.
That the mandamus should not issue be-
cause the relator has not made any demand
on the board, nor has he made any profter
of the warrants held by him, and that the
acts TO be performed are not specifically set
forth and accurately described.
That they are distinct acts, not dependent
the one upon the other. and can not be in
cluded in one mandamus; that one of the
acts to be performed, to wit: to receive
money from the State Treasurer, does not
depend upon the will of your respondents,
but upon the will of the State Treasurer,
etc.
That no mandamus can issue to the Treas
uper of the board distinct from man
damus addressed to the corporation, the
Treasurer being a subordinate, subject to
the will of the governing body, etc.
On the day fixed for trial, it appears from
nth e brief Of the counsel for the Board OF
| Metropolitan Police (but there is nothing
in the record to show it) that the suit was
discontinued as to the Boa'd OF Metropoli-
| tan Police. and the following admissions
| were made by counsel for Burbank,
to wit: "Piat since the insti
on Tuesday or Wednesday, Mr. Burbank
has received from the State Treasurer $685.
| 79O Al, with Sll, 900 reserved for the pay
ment of the Police Commissioners. A suit
was brought in the Sixth District Court, on
the twenty-first of this month. by J. B.
| Howard, agent, for the sums following, to
wit: Antoine Dubuclet. S49O0O0; MIR. j.
Hernandez. SIG 600; Mr. H. Newgass,
$4,000; Octave Belot. $26, 600, and sundry
| other persons, in which the mandamus was
peremptory. On the same day mandamus
| on S. N. Burbank was made peremptOry in
favor of William Pugh for $37, 53o OF. On
| the same day like mandamus was made
peremptory in favor Of Davidson 4 Hill for
| Sl2S13 Ga On the twenty second day OF
October Hughes e. Dejean, representing
numerous policemen, obtained judgment
day, the twenty. fifth October, S. N. Bur-
bank, Treasurer, obtained a mandamus on
Antoine Dubuclet to pay over to him, as
Treasurer, S596,790 47, less S1l 900 reserved
| for the Commissioners. MIR. 5. n. Burbank,
Treasurer, as he understands, has paid to
Antoine Dubuclet. as a citizen and holder OF
| warrants, about $780, ,0O0."
Upon this evidence and the pleading, the
| Judge quo made the mandamus peremp-
tory against ButDanK
! It 1s lamentable to witness such fragrant
| abuse of legal remedies and such shameful
derelction of official duties as are shown
| by this record. The answer filed by the
| Board of Metropolitan Police furnish good
and sufficient reasons why the maEuamus
should not have been made perem2tory.
It is, therefore, ordered and adjudged that
| the Judgment of the District Court be re-
| versed, and that the petitioners application
! be dismissed with costs OF both courts.
State ex rel. s. N. Burbank, Treasurer
| Metropolitan Police Board, vs.. Antoine
Dubuclet, State Treasurer. Appeal from
the Sixth District Court for the parish of
Orleans.-Howe, J.
The Board of Metropolitan Police have ap.
pealed from judgment rendered herein in
| favor of relator, their treasurer, and against
| the respondent, the State Treasurer, and
| which directs the latter to pay over to the
| former the aum of $596 100 AZ. ION account
| of the amount coming to the Board of Met
ropolitan Police as part of the appOrtion.
ment of the city of New Orleans, as provided
| by the laws"
The appellants complain that their treas.
urer, Burbank, commenced the proceedings
in violation of their orders, and without
authority to stand in judgment; that they
sought to come into the case by intervene
ton and show this fact. but the Judge re-
fused to permit them so to do. to which re-
fusal they excepted. The judgment having
been given as above stated, they thus appeal.
The relator, Burbank, moves to dismiss
the appeal thus taken by the board on
various grounds. We do not feel inclined,
in the view we have taken of the case. to
consider his motion, except to say that,
as the financial officer of the board, he
has no right on technical grounds to attempt
to dismiss the appeal taken by his principal.
He brou yht this suit in his representative
canocitv and il vould be strange indeed