New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-07-13
THE COURTS.
eighth District COurt-Judge DibbIe's
Opinion ON the Matter of Public
Printing-The State Warrants I'm.
n-o.lso-Tba StsUnr rssfad One fiou.

Opinion on the ul8Iter OIL fuDuc
Printing-The State Warrants I'm.
brogiio-The Sugar shed Question.
In the case of the State on the relation OF
John Z. Leet VS.. the Auditor, Judge Dbl
BILE Yesterday morning delivered decision
refusing the perpemtOry writ of mandamus
prayed for. In his opinion Judge Dibble
reviews the case as follows:
Relator is the proprietor of the Abbeville
Flag, a newspaper published at Abbeville,
Vermilion parish. He has a contract for
public printing under the laws approved
July "a, 1868, and February 3 1871. The
first of these acts authorizes the Governor,
Lieutenant Governor and Speaker of the
House of Representatives, or a majority Of
them, to make contract with some person
as State Printer and to select and contract
with the owners of papers IN the parishes 10
publish the laws and journals of the Legs
fature; such papers to be the official jour-
mails of the parishes.
Under the provisions of this statute the
bills for printing were audited by the State
Auditor. 1t is a matter OF history that
numerous frauds were committed by the
person then holding that otfic.
Therefore the Legislature enacted the law,
approved February 3, 1871. A uniform rate
of measurement. was liked, and, except In
the case Of the State Printer, the act con-
terminates that the work shall be done under
tenant Governor and the Speaker of the
House. 1t is provided that they shall APP
prove all the bills against the State for
such work in a manner that will secure
uniform payment to all persons or papers
contracting TO publish either the journals or
laws, and the Auditor of Public Accounts
shall upon presentation of such bills or ac-
counts, duly approved by the Governor,
Lieutenant Governor and Speaker of the
House of Representatives, issue his war
rant upon the State Treasurer for the full
amount 50 approved.
The relator AYERS in his petition that an
der his contract, he has performed work by
printing and publishing the laws, as re-
auired to DO; that his bill or account
amounts to one thousand six hundred and
thirty-four dollars and that the said account
has been approved by the proper officers,
but that the Auditor has refused to issue a
warrant to him. as required to do by the
statute aforesaid. Wherefore he applies
for the writ of mandamus to compel the
Auditor to perform the duty imposed upon
him. The Attorney General. on behalf OF the
respondent, makes return, and for reason
why the mandamus should not be made per
emptOry, says:
That even if the sum claimed is due
(which is dened), the Auditor can not war
rant therefor because the account has not
been approved by the Governor of the State
of Louisiana, as required by law.
The respondent has nothing to do with
auditing the accounts for printing; there
fore he can not set up that the claim is not
due. The only question to be decided is
whether the bills have been properly APP
proved On the trial it was admitted that
on the twenty-thlrd day of June, 1871, Gov
ernor H. G. Warmoth was in the State, but
that on the twenty-eighth of June be was
absent from the State.
= The relator offered in evidence detailed
bill This account is indOrsed: Examined
June 81. 1871, and found correct. George
f. Bovee, Secretary Printing Commission
ers." Also. Approved June a.. 1871. e.
w. Carter, Speaker of the House of Repre-
sentatives' Also, approved June %,
1871. o. j. Dunn, Lieutenant Governor"
Also, Approved June %, 1871. o. j..
Dunn. Acting Governor OF Louisiana"
If these approyals were otherwise sutfi-
.cient, it seems TO me that they must be con-
sidered defective from the fact that the
approval of the Lieutenant Governor was
first written on June IS. He could not act
in the double capacity of Governor and
Lieutenant Governor at the same time. 1t
may be that the relatOr would be able to
explain this alternative, but in the absence
of such explanations in the record would
not issue the writ.
However, an examination of these laws
relative to the public printing satisfies me
that the approval of the acting Governor
who has first approved as Lieutenant Gov
ernor, is not sufficient.
The officers named are constituted spe-
.cial commission for specific purpose. The
Secretary of State writes himself secretary
of the printing commissioners. The first
statute, which seems to have been carefully
prepared, authorizes majority of them to
enter into contracts for printing. But the
second law, which was enacted at the time
of the impeachment of the late Auditor,
who was accused of fraud in the measure
ment and payment of certain bills for print
ing, directs the officers designated to super
wise the public printing and approve all bills.
These several official acts of giving print
ing contracts, supervising the printing and
auditing the bills, do not come within the
constitutional duties of the officers desig-
mated. This is particularly shown by the fact
that in making the contracts either the
Governor, Lieutenant Governor or the
Speaker may fail to act without affecting
the contract. 1t would be otherwise II
they were acting under their duties as con-
stitutional officers. But in the matter of
the approval of the bills, the law has pro-
vided that all of the commissioners must
consent. There must be an agreement OF
three minds, not of two.
This provision, II seems, should be inter-
preted by the rule applied to corporations.
If number of persons are appointed for
particular purpose, all must act.
During the absence of the Governor from
the State the Lieutenant Governor per
forms such executive functions as the con-
stitution and laws have imposed upon the
head of the executive department.
But in this case he is not called upon to
act as chief magistrate, but to take the
place of the Governor in board OF COM
missioners; to become one OF three OF which
he is one. The law contemplates the action
of three.
The return of the respondent is sufficient.
1t is therefore ordered that the peremptory
writ of mandamus be refused.
In the suit of John w. Hillman VS.. A. Du-
buclet, State Treasurer, Judge Dibble yes
terday rendered a decision refusing the in
junction prayed for. The following parties
were intervenors in this suit: Judge Col
lens, Judge beaumont, Judge Theard,
Judge Henry Train, Judge EmmersOn, Sam
H1ta 2. Blanc, James Buckley, j. Hawkins,
Joseph Hernandez and Gustave Lewis.
The case involves the right of priority as
applied to the payment of State warrants.
We subjoin the opinion
This is an application for an injunction.
A rule nisi has been heard.
The plaintiff alleges that he is holder, as
owner and agent, of State warrants for
S67 900, payable out of the general funds OF
the treasury. He AYERS that he has de-
manded payment of defendant, but was
refused upon the ground that there was no
money in the general fund. He further
AYERS that, although requested, the Treas
urer refused to retain out of such moneys as
might thereafter come into the treasury a
sufficient sum to pay his said warrants.
The plaintiff charges that the refusal OF
the Treasurer to pay him, or to retain suth-
Gent amount to pay him, is calculated to
defraud him of his rights and TO work him
|. az, irrorn 70 HE ininrr He nraYs for an in.