The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1874-08-01
THE FISCAL AGENCY.
THE DECISION OF THE SUPREME COURT.

Deeming it of sufficient general interest W
give below the full text Of the decision Of tn
Supreme Court in the case of the State ex rel
Albert Baldwin vs.. Antoine Dnbuclet STATE
Of Louisiana Intervention appeal from thu
Superior District Court, parish Of Orleans
and also the dissenting opinion Of Chief Jus
tice Ludeling:
The relator has appealed from the judgmen
rejecting his mandamus proceeding to compe
the defendant to recognize him fiscal agen
under Act No. 3 Of the acts of 1874, and to depos
with him all the funds Of the State.
The appeal was made returnable at the session
of the Sapreme Court to be held at New Orlean.
on the first Monday Of November, 1874. Before
the return day, to-wit July 20 1874. the plaintiff
procured the consent of the Governor for the
transfer OF the case to this place: and for the
trial thereof at this term, and under Act No. Il
OF the acts of 1872, the Governor employed an
attorney to take charge Of the defense. The
Attorney General objects to the trial Of the case
before the return day and at this term OF the
court he denies the authority Of the Governor
to give consent for its transfer and also his au-
thority to appoint counsel to assist supersede
him in the management OF the case. Antoine
Dubuclet, the defendant, also refuses to consent
to trial of the case here. Looking to Act No.
II Of the acts of 1872, the statute under which
the Governor acted in this case, we find that he
" has the right III the case OF the absence, death,
resignation or Inability to act in any particular
case Of the Attorney General, or proper District
Attorney, or when either of them may be
directly interested. to designate an attorney iof
such case to act in behalf Ut the State, for the
protection OF the public interest.
Was the Governor authorized under the
statutes to consent to the transfer OF the case and
the trial thereof at this term, Notwithstanding
the opposition Of the Attorney General. who tried
the case in the cour' below?
The Attorney General is the proper officer to
represent the State in all her lawsuits, and the
statute in question was not intended to deprive
him OF the control and management OF his cases.
In order to protect the pubic interest IN every
particular case where the Attorney General was
Interested, Or was unable to act from death,
resignation, absence, or from any other cause,
this statute authorizes the Governor to appoint
an attorney for such case. 1t does not authorize
him to giveIconsent for the transfer OF any par
tcular case, and for the trial thereof before the
return day, at different term Of the court. The
whatever. When the condition happens upon
which he has authority to employ counsel for the
State, the attorney designated by him takes con-
troll of such case.
The attorney designated by the Governor in
this case does not consent for its trial here. But
under the statute the Governor was utterly with
out authority to act in this case, because the At
tOrney General IS not personally interested, he
has not resigned nor is lie dead absent, or
unable TO attend to the duties of his office. He
the court below IN behalf of the State, the inter-
venor and in behalf Of Dubucet. the defendant.
He gained the case, and he will doubtless be
ready to meet the relator and try the appeal at
the time and place where it was made return.ble,
and where he was cited to trial Because he re-
fused to try the appeal at a different place and
time, and before the re urn day, 1t cannot fairy
be said that the Attorney General Is unwilling or
unable to act, or that the public int est conided
to him has III any manner suffered or is likely to
suffer. Ia refusing to try the case as desired by
the relator, he has SIMPLY expresseda legalrisht,
OF which the appellant has no cause to complain
The defendant, Dubuclet, is j terested III this
case. He is the party against whom the man
the trial here. He has been cited TO meet relator
and try the appeal on the first Monday Of No
vember next, at New Orleans. Under section
seven Of Act No. 35, of 1874, he can employ spe
now he may well complain that he has not been
heard, because to try the case at different
place and before the return day, is equivalent to
trial without citation and an opp ,rtunlty to
make defense. What is the use of citing the
defendant to the trial Of this appeal at New Or
leans, on the first Monday of November, 1874, il
he can be condemned lghtfully at the July term
of 1874 at Monroe. II citation was necessary to
perfect the appeal, the defendants case cannot
be tried without his consent except at the time
and place where he was cited,
The appellant contends, however that the de-
fcndant has no interest; il So why was he sued
and cited below? Ii his presence was necessary
at the trial there, it IS equally as important here,
and the trial of the DESCENDANT, before the day ne
cited to trial, and at different place, is GER
tainly trial without citation. He is entitled to
the delay from the time the appeal was taken to
the return day thereof, to prepare his defense, |
and to employ special counsel, if he chooses to
do so.
The defendant is the party sued and against
whom our decree must be enforced, if the man
damus be made peremptory. He is necessary
Earty, and the case cannot be tired without his
1t is, therefore, ordered that this appeal be
stricken from the docket, with leave to the appel
liant to Withdraw the transcript and file 1t at
New Orleans, in conformity with the order OF
appeal:
Justices Taliaferro and Howell join with Justice |
WHY in the opinion rendered
Chief Justice Ludellng dissenting:
The SIMPLE question now before the court for
decision is, can the chief executive OF the State
consent, "n the part of the Treasurer and in spite
Of beS opposition and of the Attorney Genera d.
that the may be removed to Monroe ter
speed, determination. The case is in which
1n officer of the State is proceeding by mantlamus
aSalnst an other officer Of the STATE to compel him
to perform ministerial duty 1t is ma he the
duty Of The chief executive of the State $ to see
that the laws faithfully executed" If it be
ministerial dut, of the Treasurer, under any law
of the State, to do what he is required to do in
the REALTORS petition, it is the duty Of the eNecu-
live to see that thu law be executed
The case by law is a preferred case, to be sub
mitted for decision by the Attorney General, and
4 he refused or neglected to do SO, to employ
other counsel. DubucIet, personally, is not
before the court. 1t is the Treasurer alone who
s before the court in his official capacity; and IN
numerous cases, running all throus h the twenty
ourth, twenty fifth and rw. nty-Sixth Annua 5.
his court has recognized this fact that when an
'tcer i proceeded against IN his official capacity
IF has 40 right to appear III person or by attorney
selected by himself, but must be represented by
he Attorney General some other attorney
selected 10y the Governor. Act Of 1872, February,
page 62.
This case was brought here by consent of the !
'eiatOr and the Governor. The Attorney General
'ppled for time to file brief after the case had
'een submitted, which was allowed and he filed
as brief without urging this want of consent, and
Il the last moment he files another brief through
.nother attorney, urging this want Of consent on
he part OF the Treasurer. l do not think 1t
hould be considered, but if it be, do not regard
he objection valid. What honest reason can be