New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-07-31

COURT RECORD.
THURSDAY, JULY 80, 1874.
Supreme COurt-At Monroe.

THURSDAY, JULY 80, 1874.
Supreme COurt-At Monroe.
The following decision was rendered on
Monday, twenty seventh instant:
YJUsTICE wYLY.
State ex rel. Albert Baldwin VS.. Antoine
Dubuclet, State of Louisiana intervenor.-
Appeal form the Superior District Court,
parish of Orleans. The relator has appealed
from the judgment rejecting MS mandamus
proceeding to compel the defendant to re-
cognize him as fiscal agent under act No.
3 Of the acts of 1874, and to deposit with
him all the funds of the State.
The appeal was made returnable at the
session OF the Supreme Court to be held at
New Orleans On the first Monday of Novem-
Der, 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. u 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 tranfer and
also his authority to appoint counsel to as
sist or supercede him in the nanagementof OF
the case. Antoine Dubuclet the defendant,
also refuses to consent to the trial OF the
case here. Looking to act No. II OF the acts
of 1872 the statute under which the Gov
ernor acted in this case, we lind that he
"has the right in case OF the absence. death,
resignation, or inability to act in any par
ticular case of the Attorney General, or
proper district attorney, or when either OF
them may be directly interested, to
designate an attorney for such case to act
in behalf Of 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, not
withstar ding the opposition OF the Attorney
General, who tried the case in the court be-
low?
The Attorney General is the proper officer
to represent the State in all her lawsuits,
and the statute in question was not intend
ed to deprive him of the control and man.
agement of his cases.
In order to protect the public 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 author
| ICES the Governor to appoint an attorney
| for such case. 1t does not authorize him to
give consent for the transfer OF any partlcu-
| lar case, and for the trial thereof before the
return day. at different term of the court.
The act gives him no personal control OF the
case whatever. When the condition hap
Ders upon which he has authority to
employ counsel for the State, the attorney
designated by him takes control of such
case. The attorney designated by the Gov
ernOr in this case does not consent Tor Its
| trial here. But under the statute the Gov
ernor was utterly without authority to act
| in this case because the Attorney General
| ia not personally interested, he has not re-
| signed, nor is he dead or absent, or unable
| to attend to the duties of his office. He
appears to have faithfully defended the case
| in the court below in behalf of the State,
| the intervenor and in behalf OF Dubuclet,
the defendant. He gained the case, and ne
| will doubtless be ready to meet the relator
and try the appeal at the time and place
where it was made returnable, and where
| he was cited to trial. Because he refused
| to try the appeal at different place and
time and before the return day, it can not
| fairly be said that the Attorney General is
| unwilling or unable to act, or that the pub
| lie interest confided to him has in any man
| ner suffered or is likely to suffer. In retus-
| ing to try the case as desired by the relator,
| he has simply expressed a legal right, Of
which the appellant has no cause to COM
PLAIN.
The defendant, Dubuclet. is interested in
| this case. He is the party against whom
| the mandamus is sought, and he has not
consented to the trial here. He has been
| the first Monday of November next at New
| Orleans Under section seven of act No. 30
of 1874 he can employ special counsel for
| his defense. 1t the case is tried 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 equiva-
| lent to a trial without citation and an op-
portunity to make defense. What is the
| use of citing the defendant to the trial OF
this appeal at New Orleans on the first
! Monday of November, 1874, if he can be
| condemned rightfully at the July term of
| 1874 at Monroe! If citation was necessary
| to perfect the appeal, the defendants case
| can not be tried without his consent except
at the time and place where he was cited.
The appellant contends, however, that
| the defendant has no interest," if SO, why
| was he sued and cited below! If his pres
ence was necessary at the trial there. it is
| equally as important here, and the trial of
the defendant, before the day he was cited
| to trial, and at different place, is certainly
| 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,
| The defendant is the party sued, and
| against whom our decree must be enforced,
| if the mandamus be made peremptory. He
| is a necessary party, and the case can not
be tried without his consent.
1t is, therefore, ordered that this appeal
be stricken from the docket, with leave to
the appellant to withdraw the transcript.
and file it at New Orleans, in conformity
| with the order of appeal.
Justices TaliaferO and Howell join with
Justice Wyly in the opinion rendered
| Chief Justice Ludeling dissenting:
The simple question now before the court
for decision is, can the chief executive of
the State consent, on the part of the Treas
urer, and in spite of his opposition and of
the Attorney General, that the case may be
removed to Monroe for speedy determine
ton. The case is one in which an officer
of the State is proceeding by mandamus
against another officer Of the State to COM
| pel him to perform ministerial duty. 1t
| is made the duty of the chief executive of
| the State ''to see that the laws are faith
| fully executed" If it be ministerial duty
of the Treasurer, under any law of the
State, to do what he is required to do in the
relator's petition, it is the duty of
| the executive to see that the law be
| executed. The case by law is preferred
case to be submitted for decision by the
Attorney General, and if he refused or
I neglected to do so to employ other counsel.
I Dubuclet, personally, is not before the
court. 1t is the Treasurer alone who is be.
fore the court in his official capacity; and
in numerous cases, running all through the
Twenty fourth, Twenty-fifth and Twenty
sixth Annuals, this court has recognized