New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-11-27
COURT RECORD.
WEDNESDAY,. NOVEMBER 26, 1873.

"bpNLSDAl. NOVEMBER 70, 1873.
All the courts have adjourned fill Friday
Thursday being thanks sciving day. and a
legal holiday.
United States Circuit Court.
John Cockrem. receiver of the New Or
leans National Banking Association. VS.. f
Il. Keynes & Brother and Park Nationa.
Bank OF New York.
The grounds of complaint in orators bill
are identical with those in the case of Cock.
rel. .s. Schneider ct els.
Superior District Court.
Robert Ray VS.. Charles Clinton. State
Auditor, and Antoine Dnbuclet. State T.ea.
surer.
The following notifications of the iniunc.
non have been decreed:
cn motion of counsel for the widow and
heirs of Henry }. SPOTS, SiG5 30 are
permitted 70 be paid Co that succession
On motion OF the Attorney General, the
injunction is enlarged TO permit the pay.
ment of $1,000 advance costs in prosecuting q
defaulters
On motion of Richard Pritchard, inter
venor, the injunction is enlarged to allow
the payment ont of the general fund of the
appropriations to the Insane Asylum, at
jackson; the Deaf. Dumb and Blind Asy-
INN. al Baton Rouge, and the Charity
Hospital, at New Orleans, the revenues col
lected for these appropriations to be kept
separate.
The State ex rel. William DurbriGge vs.
Charles Clinton, Auditor; the State ex rel
Eagar, Ellerman & Co. VS.. the same
The following most important decision
was given yesterday in the above cases.
Mr.. J. Q. A. Fellows appeared for the At
torney General.
The questions presented IN this case fall
within narrow compass. Two parties
claim to have been contractors with the
State for the purpose of improving the navi-
CATION of Red river under an act Of the
Legislature TACT No. 50 of 1863, authorizing
improvements to be made in that river.
They allege that the State had agreed in
that act to execute her bonds at twenty
years in payment for the work done
under contract as provided in the act
OF the amount of that contract $S5,000
has been paid, and, as alleged, $4,000 is
Yet due. 1t is alleged that the State has
caused the bonds to be executed by the
proper officers, and has given them over into
the hands of the Auditor to be delivered. On
demand the Auditor refused to deliver those
bonds to the claimants or persons IN whose
favor they have been issued, for the reason
that il his opinion the act authorizing their
issue was unconstitutional. The parties ap-
pei him to deliver them.
Under an act passed IN 1872 (act No. II
of 1922, the Legislature directed the Attor-
ney General to appear in all cases where
the Auditor, Treasurer or any other State
officer is party, to defend them. lhey
were not allowed to employ private connse!
for their defensee The Attorney GeneSal Is
also authorized by the sam" as'te-and which
duties seem to be in the nature OF his Office
4 l1..r1
his Judgment it becomes necessary He ap.
pears here for the Auditor. and also for the
State, and alleges, on TIE part OF the State.
hat this act is unconstitutional; that 1t Voc
lates article Ill of the constitution. which
prohibits the Legislature from creating. any
debt without providing fhs means OF pay.
ment of the interest which would accrue on
that debt, and also providing for the pay
ment of the principals The constitutions
atty OF this acte when e0nsldered IN refer'
snce to that provision of The constitution. !
must be determined bv asce, taining whether |
his is debt or mote l imagine il IS ,
scarcely necessary 10 elaborate at all
IN this questions Wherever the State !
provides that anything shall be Sonee !
,r any claim shall be satisfied by |
he execution of bonds running to a given !
period of time, and does not provide tor the |
OF the principal when 1t might |
nature, it is a debt against the States That
would seem to dispose OF these cases with
mt going any further, as far as the bends
re concerned. must conclude that that
vas the intention of the trainers of the con }
because in 1870 they caused an
to the constitution to be sub
nitted to the people for ratification. |
nd which was ratified on the fourth
r fifth of November. 1870. prohibiting
he increase of the State debt above GER
ain limit, which was fixed at S2o,00O,tOo.
hat provision of the constitution must be
onsiGered i'll reference to article III IL OF the
ame constitution. which provides that the
legislature shall not create debt without
rOviding the means of eXtinguishing IL IN
he same act, to an amount above Sl0O,0 ,0UU.
was seen that de bts might be created and
rovidel for in the saDie manner. Under
rticle Ill debts had been created, con-
nued to be created and were increasing
al alarming rate. and 1t was found neces-
iry to make another provision to conform
=, that. l think it must be considered as
sta ablishing the doctrine that the Legisla-
Ire hIs, constitutionalIy, no power to
reate debts. In ether words, Legislatures
iii not enter on system of general public
improvements and create debts at their own |
secretion. When it was ascertalned that
icy had already created debts to an alarm
g amount and had enacted privileges
the shape of franchises and CON
acts investing power IN corpora
ons to create debts, it was found
4cessary to make a provision in order that
Il State might not be entirely bankrupted
Y the indiscretion of the Legislature,
hlch was unlimited in its character. The I
ST limitation was discovered not to be
cOerclve to prevent the Leglsla-
re from exercising too much latitude and
secretion in the latter of creating debts.
provision was therefore placed in the
Estitution, and became part of the or
mic law from the date OF its adop
N. 1t is not necessary to annul
is act of the Legislature on account
that provision Of the constitution, be
use there are so many other acts. 1t +
,ud be a parplexing question, and might
Oduee d revolution in the public securl-
8 already held. But here is an uneXe. ! {
ted claim which is sought to be enforced. q
i. my opinion that the constitutional
ltation, equally binding with the other,
sufficient to determine this case. l will !
t declare the act unconstitutional or ac-
unit OF its infringing on previous article,
l., but cOnne it to the prohibition s.
iced in the amendment to the constitu- !;
u adopted in 1870.
Che evidence dlsclOses in this ease ehat in IL
0 "a contract was made, first with Oliver 5
Alban, to construct dam III Red river y
Ter certain specifications. That contract ',
$ made under the provisions OF act NO. (
Oi 1868. authorizing these works to be II
is. II lS7: after the adoption Of the con , ii
utiUnAl prohibition OF 1870, limiting the al
IT tv 50. .000, ,00N. a change was made. =
nsitS Wa s..ade. aud an extension of tht
e in which 9hi, work was 70 be completed |
5 gig Ii 10y she board of engineers who had
II been cr.sJed, ahd were the proper per "a
$ to repreSes She State in such matters. .
Is traustrr and assignment was not made >i
il after the .ldoption of ehe sonstitutiona!
itafion and therefore the constitutional %
ltation applied to all unexecuted con IN
ces which were carried out after the pl