The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-11-18
FIFTH DIsTRICT COURT.


Muller, wife Of Theobald Ohristen opened.
FIFTH DISTRICT COURT.
In the case Of the State OK rel. II. o. Dibble va.
new trial on behalf Of relator were submitted by
ames Lngan, Esq, attorney for relator:
State OF Louisiana ex rel. II O. Dibble vs. State
Auditor; j. O. Egan, intervenor- Points In sup.
port Of motion for q new trisl on behalf OF rels-
eOr.--The elaborate and able review of the whole
facts and law OF this case by your honor in the
decision rendered enables me TO come at once to
the points of divergence between the conclusions
reached by the court and those claimed for the
shall beg the indulgence OF the court TO but
twO points Of law, in which hope to show that
ths cosrt has erred in It's judgment as to the re-
1at0r by applying to him the conclusions only APP
plicAble to the intervenor. La the Interpretation
Ok Legislative act view earnestly pressed or
sven casually entertained will often be rejected
On more COOL investigation or more deliberate
consideration, and trust your honor will bear,
rslator's counsel IL already indebted, full and
Zion. fe''N"
Your honor's conclusions concur with relstor
" saying that there is no doubt relator held
O1ico under cot No. 35 OF 1874, until his successor
was appointed and qualified under the same act,
viz: until March "a. 1877 You also say 'sthe act
Of 1874 mo- 35l was still In force at the passage
ut act No. 10" and we concur in your view that
considered ~.
did the act No. 10 create q new officer Your
honor concludes that 1t did create new Office.
Now. 1t 10 submitted, first, that even IL act No,
10dtd Actually abolish the old office of Assistant
Attorney General on the Gath OF March, 1877, and
creAte o e,c Office Of Assistant Attorney General
- the same date and by the same stroke of the
pen, reat0r IL still entitled to be paid under the
appropriation act No. AZ Of 1877. Your honor
~. mislead as TO the phraseology Of the last
Z. 6EoffoN That tie following sums,. stc.,
~Are hereby appropriated" ETC.. "for the foil
4ng purposes for the year ending the thirty.frst
Dscembor 1877" etc. .,,o for salary Of Assistant
urally followed the erroneous quotation which
EeAd. ITO the following persons, instead of ..fo,.
tho following purposes" The distinction be-
tween an appropriation "to" certain ''persons"
and for certain purposes" is obvious, and to
ny mind goes far to elucidate the real intention
q the law maker and brings va TO the real point
- ISSUE. The appropriation act of 1877, like ali
0tnor general appropriation acts contemplated
osftain officers and ''salaries of Office" and be.
oause the public good requires the entire ser.
yiOes OF its servants, the Legislature has also
eK0mpted salaries OF office from seizure for debt.
IL therefore. The appropriation act be consid-
ered n the light of personal statute, and Mr..
=. or B. could be considered as personally con-
tSmplAted, with equal propriety could the infer.
onoe BE- drawn that the exemption from seizure
81 salaries OF Office" was intended to single Ont
-. A. or b. and exempt them from the legal OBJ.
AA81tA0Hb Oh cltEeDenlp.
Act Az then appropriated 5000 for the salary
Mxed by law TO the office of Assistant Attorney
General, for the year ending December 81. 1877.
" course, II no person had legally filed that
omc6 during the year. or If the Office had been
pxopriated could not legally have been drawn.
But the office would nevertheless have existed. |
Now your honor correctly finds that the office of
Assistane Attorney General legally existed under |
sct No. 30 Of 1874. until ID was repealed by act
10: 10 of 1877, viz: from January list to March |
nth, 1877, or nearly the whole of the frat ouar-
~ Of that year, and that the reator legally iied
That office during that time and ia entitled to be
DC; pup, you cay. latter quoting the act az ap.
10 Tie toho,oing persons:)
The only Assistant Attorney General at the
ume Of the passage OF this act was the interve-
1or; the office Of Assistant Attorney General,
Gsgs knOtcn 10 h,e tdsc, was the one created by
Tor this Office that the appropriation, or 80 much
q - was necessary, was made" II is re.
opectfully submitted that the Office existing
under act No. So was IS fully "kno,cm to ne
lQsn' % That under act No. TO- and must equally
have been In legislative contempation that any
Dlher construction is an unwarrauted restriction
nf the words Of the statute. Il cannot be pre-.
lumed that the Legislature intended to ignore
We existence OF the office legally existing and
legally hled under act No. 3d.. which sct, 90 your
Won stilI IN force at the passage of act No. TO-"
Xhe Act No. Al appropriates for the office for the
whole rear, and. as your honor again says, sswhen
NE appropriation is made for the year ending
gasnces January l, 1877. for il IL In contempla-
non that the work for the entire year
vii be performed. May not assume
nat the Legislature had intended to ex-
niaon one who had legally filed the Office for
which II was made during portion, viz the first
quarter OF that year, which began Jsnusry l. 1877.
eAey would 40 have expressed themselves
Does ~ mot give full, consistent and equita.
6le operation TO every part OF the statute, that
whore the Office existed and was legally filled for
Nat time. that the occupant should participate
y the appropriation for that timer Would not
any cthcr construction limit and restrict the on
STATION OF the statutep think co.
But secondly. submit that on general prn.
lples e well IS under the settled decisions OF this
State the Office OF Assistant Attorney General
lrss not abolished BY act No. 10 OF 1877.
IN reply to the question "did act No. 10 create
ssctc office, the court admits that "this mus
appear from the trords of the statute" and then
1.-THE duties defined by the act of 1877
~ distinct from those defined by the act Of 1874
~ y y expressly declared by the provisions OF
ugoAtng the Office of Assistant Attorney General
improved March 8, 1874, is repealed The words
Are clear and admit OF only one Interpretation.
md that IL that the Legislature abolished an old
of . new officer" Now article ia of
Dnr State constitution prescribes "Eyery law SHAH
IMPRESS lite object or objects in it's title" and if
~ No. 10 be valid constitutional enactment, it's
Ms must. under this Interpretation, il such was
- purpose Of the Legislature, express t,co OBJ.
eots one .to abolish and the other "to cre-
w. Z the Office of Assistant Attorney General.
Bat i, on the contrary, the. purpose of the
ksgislature was not to abolish the Office but Sim
Az % change and regulate the duties or emolu-
nonts thereof, we shall find those purposes ex-
pressed Id its title" as the constitu ton reonires
Il this course Of investigation we are all the more
by the just and emphatic enunciation
4 your honor, that while am aware that our
,cnrts have held such review (of Legislative
vim within the province aud duty OF the Judge,
has always been restricted to such laws when
he words of the statute are ambiguous and sus.
,epti5le of difrent Interpretations" Now it will
- admitted, that ii the Interpretation sustained
y your honor's Judgment be such as to construe
Ae Legislative will to have been to ignore or vo-
~ the above constitutional requirement, then
|nch Interpretation must be rejected. The OBJ
Ut OF tho Legislature cannot be presumed to
IaVe been to abolish the Office, unless such pur-
go Nna exprassed in the title of thu act q fa,..