New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-09-12
The Beard OF Assessors vs.. Auditor Gra-

The Board OF Assessors VS.. Auditor Gra-
ham.
Some time in June last the old board of
State assessors obtained judgment in the
Eighth District Court, commanding Auditor
Graham to pay them forty odd thousand
dollars for fees claimed on the assessment
rolls. The Auditor appealed to the Supreme
Court, but the Attorney General subsc-
quently moved to have the appeal with
drawn or dismissed, which motion was
granted by Judge Emerson.
Mr. Graham, however, refused TO issue
the warrants, whereupon the reIators ap-
piled again to the Eighth District Court for
an. executory order, which Judge Cooley
granted on Monday. The reasons for judg-
ment are given below. In this connection
we may state that a formal demand was
made on the Auditor on Tuesday TO comply
with this executory order, and he again
refused.
State Of Louisiana eI rel. board OF State
assessors vs.. James Graham, State Au-
ditor-Eighth District Court for the parish
of Orleans, No. 745l.-Reasons for Judgment
on rule to make the judgment eNccutory:
This is rule taken against the Auditor
of Public Accounts to show cause why a iUdg-
ment rendered in this court in the month Of
June last should not be executed and paid
by him.
The board of State assessors. in proceed
ing by way Of mandamus, obtained judg-
meDt against the Auditor OF Public Ec-
counts, ordering him to pay some forty odd
thousand dollars. 1t appears that the Au-
ditor applied for and obtained suspeDsive
appeal to the Supreme Court through his
counsel, HOrnor u Benedict.
Subsequently, a ruie was taken on the
Auditor Of Public Accounts to show cause
why the suspensiye appeal should not be
set aside, as the Auditor was not properly
represented, his counsel, HOrnor. Il Bene-
diet, having no authority to appear for
him. This objection was founded on act
No. q Of the Legislature of 1872, which
provides in q general manner that in all
litigation concerning the interests of the
State, wher0 any Of the otficers-Auditor or
Treasurer-are sued, that litigation shall
be attended to exclusively by the Attorney
General, and that any plea, or any answer
or any proceeding whatever taken by those
officers, if filed through the instrumentality
OF any other counsel except the Attorney
General, shall be Immediately dismissed By
a court Of Justice as soon as brought to its
knowledge.
Under the influence OF that act Judge
Emerson. on the rule to show cause why
the suspensiye appeal taken should not be
dismissed, did enter an order making the
rule absolute and dismissiDg the appeal.
Subsequently to this order issued by Judge
Emerson, the the Attorney General, for
the State of Louisiana, and the reIat0rs
counsel in this case entered into written
agreement to withdraw the appeal from the
Supreme Court and to bring the transcript
away and file it again in this court This
was done, and from certificate OF the
clerk Of the Supreme Court on file it APP
pears the appeal was withdrawn by con
sent Of both parties-the appellant and the
appellee. After this was done and the GER
tiicate filed in this court, the parties took
this rule ON the Auditor Of Public Ac-
counts to show cause why the judgment
should not be executed, as it had become
executory and the appeal had been with
drawn. On the part of the Auditor it is
contended that the order OF Judge Emer-
son was imprOvidentiy issued, and that he
had no authority to dismiss an appeal on
case pending in the Supreme Court.
| concede the point as perfectly well
taken, that district court has no right to
dismiss an appeal after that appeal has
gone to the Supreme Court on reasons such
as Judge Emerson predicates his order On.
The Supreme Court is the only one that
could dismiss such an appeal. do not IN
derstand that an lnterisr court can dismiss
what is technically called an appeal to the
Supreme Court 1t is only that court which
has that power. In some cases the court OF
first instance is authorized to examine into
the solvency Of the surety or the sutfieiency
of the bond, and in case the bond IS INSULT
Cient or the surety not solvent, the appeal
is still maintained as devOIutl7e one; the
appellant is allowed to proceed, and the
appeal is not dismissed.
/ do not understand in any case at all
that court of inferior jurisdiction has the
right to dismiss an appeal. But this does
not do away with the other position as
sumed by the relators. The State of Louis
lana, through the Attorney General, has
consented to withdraw this appeal where
she is the appellant and where only her in
terest is at stake. The only two parties in
terested, the benefciaries, the relators inthe
case, and the sufferers have entered into the
agreement; the sufferer and the beneficiary
agree that the appeal shall be Withdrawn.
This brings us to the question as to the
power OF the Attorney General to appear
for the Auditor OF Public Accounts and con-
sent to the withdrawal of an appeal taken
by the Auditor in his own name.
1t is said that act Ne 81 is unconstitu-
tiOnal for ibis: that it diyest5 the Auditor
of Public Accounts of that right tosappear
and defend himself in court, which the con-
stitution has guaranteed to every man. l
do not understand that in matters of a mere
civil nature that anybody has the right I'M
der tine constitution of the State to appear
by counsel or in person; for if he has that
right, he derives it from some Law, and it is
in the nature of a faTor that the law has
given-lt is not absolute and iDdefeasible.
The law may take 1t away. The Code says
that a party may appear by counsel, but it
is Only Ii matters criminal in their nature
that the constitution guarantees a certain
form Of trial, and guarantees the right to
be heard personally or by counsel. In civil
matters there ia no such guarantee, and,
therefore, the Legislature can take away
from party the right to appear by counsel.
They could compel him to appear in person,