The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1875-07-02

of what is going on. I know L. E. Bently.
A question was here asked as to how he was
required to leave fund in the Auditors
hand.
Mr.. Semmes objected. He said:
"With view of shortening the testimony,
propose to object to the introduction of any
testimony in support of the three allegations
in the petition referring to tax-collectors, on
the ground that, even if the same be proved
to be true, it does not make the Auditor liable
in civil suit"
He then read the allegations of the petition
referred to.
"You will, therefore, observe that Clinton
made settlement with collectors and retained
moneys from them, but there is no allegation
that the Auditor did not pay over this to the
State"
The Attorney General called Mr.. Semmes
attention to the Revised Statutes.
That may all be very true that this may
have been criminal, but am drawing dis
tinction between civil liability and criminal
one. When the party has received the money
from a tax collector that is no payment to the
State. The Auditor is only book-keeper of
the State. Suppose Mr.. Clinton had
absconded with these moneys do you sup
pose the tax.ccilector would not be liable for
these sums.
THE turning of money over to the Audi
tor is no payment. He is no depository OF
State funds If he had pocketed it the State
could do nothing to him. 1t is the same as if
a stranger holding the money who is not
the legal depositary OF the State.
"What decree can you render under these
allegations? Therefore say that object to
any testimony under these allegations"
Attorney General Field: "There is one
question to be settled here now with reference
has v,ln 20 uhoth sn
not now too late after the Auditor has an.
swered to the petition. The defense has de-
MED and replied to these allegations, and it is
now too late. The motion made by Mr..
Semmes is one virtually to strike out, but all
this is mere dodge. I could reply in the
language of Sir Charles Coldstream
There's nothing emphatically in 1t. -
"The bond sued on in this case is COM
mon law bond and breaches are set up. We
allege that the Auditor has violated his obi
cations, and is liable for it. The gentleman
says that criminal prosecution might lie
here. Now the gentleman is too good a
criminal lawyer rot to know that if an in
dictment lies civil remedy does also.
"But, says the gentleman, what has the
State suffered. That is matter of proof to
come hereafter. In actions on penal bonds,
any breach of the bond is sufficient for nomi-
nal damages. But 1 do not care to stop here
The law imposes upon the Auditor the settle
ment with the tax collectors.
cit is your duty then to settle with these
men, now are you obeying and complying
with the law when you stop the money in your
hands and divert it from its proper channel?
And yet thew say to US where is the damage
to the State? Is it possible that it has come
to this, that public officer can retain moneys
in his hands; and then we are told the State
has no remedy. say there is nothing in this
objection. The gentleman admits it is vio-
lation of his bond.
"The law says that should the Auditor neg
lect to perform any duty required by law, it
shall be a violation of his bond. We expect
to show by this evidence that he has done
acts not authorized by law, and what are the
consequences are the highest penal ones
known to the law. The bond reads that he
shall perform all the duties incumbent upon
him as Auditor, and these allegations are
based upon them"
Judge Cotton also for the State: "Your
Honor, I desire to call the courts attention
to petition in this CASE The petition prays
in general terms for judgment for several
thousand dollars. 1t sets forth in these sew
eraf settlements with tax collectors he viola
ted his duties.
"The petition sets forth clearly this a gen.
eral denial, has been filed, but there is
nothing said that there is any ambiguity. any
lack of clearness or any other ground of ex-
ception.
"We expect to show that the State has
sustained injury by this action of Clinton in
retaining money from the State. If under
these allegations are shown to be true, then it
is plain the commonwealth has lost the use of
this money for year, which is damage.
"The counsel for Mr.. Clinton assumes a
most singular position, and that is, that Mr..
Clinton is not responsible for these funds.
We will show that the poor tax collectors
could never effect settlement"
Judge Hawkins said the matter was plain
to the Court. He thought it was better to
object to testimony rather than to move to
strike out "Tax- Collectors give bond to
the State, hs said, "and they are response
ble-not the Auditor The Court can not be
the criminal, Judge and executioner. This
court can not take cognizanse of criminal
matters"
The whole objection was sustained.
Judge Cotton wanted to know if this ex-
tended to the case of F. J. Heron.
The Attorney General said that he had
the law and the bond and
duties of the Auditor if they were to be de-
barred from proving anything
The Court said ''You can not sue ON
hond without criminal prosecution"
The Attorney General laughed at the sim
gulAr legal proposition, and said the other
side ought to move to strike out the whole
petition.
Evidently the Judge was confused, and got
out Of it after struggle. He said he meant
Q penal bond, not bond for civil obliga-
ton. After long, desultory, rambling con-
he decided to sustain Mr. Semmss,
or rather Clinton.
Mr.. Semmes then said that he would now
make the notion te the other allegations. He
said that "all the allegations tended to show
only that the violation of duty was criminal,
and civil suit would not lie. The allegation
is that there has been a diversion of the
money, but none that he has now any of the
States in his pocket. There is distinction
between the violation of his bond and the
penal laws. If he issues an unlawful warrant
and the State pays it, then there is civil suit
for it, but if the State does not pay it, no
civil suit lies. All the allegations show that
Err Clinton has acted in lawless manner, and
that belongs to the Criminal Court"
Mr. Mari respon ded, and said that "the
position was false in law and false in mora Is
The bond given by Clinton is for the faithful
performance of his duties. Does it not seem