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

visions of the old law, viz the existence OF the
office, the salary and qualifications for the office,
we're retained In the new law, just 80 far the old
law never ceased for q moment OF time to exist
in full force and validity.
These views, IL lie respectfully submitted, are
fully sustained by reason and By the following
authorities: In the case Of the State ex rel.
John Holmes w. Emile Witt III A. 439), it was
fatty held that such repeating clause did not
abolish the old Office and create q new one.
Emile Wilt was commissioned by the Governor
leans. for two years from the 1st of March, 1856"
under an old law OF 1873. On the 14th OF March,
1855, the Legislature, revising the former leeisa.
ton ct the State passed an act providing that the
Governor should appoint Recorder Of Mort
cages for the parish Of Orleans" who was TO hold
for two years. prescribing his duties, etc., and
providing In the fourth section "that ell laws
contrary to the provisions of this act, and all
laws on the same subject matter, except what is
contained In the OWL Code and the Code Of Prac-
tice, be repealed" On the 18th of March, 1856,
the new Governor appointed John Holmes to be
recorder under the new act bat Wilt, consider
Ing that his term Of two years had not expired.
declined to vaoste, and Holmes applied for
mandamus to compel compliance with his
| claims.
| Judge Bpoford, delivering the opinion Of the
court says: 1.-THE reator contends that there
FORE" (from the repeating clause OF the new act)
"the statute Of March IA, 1856, abolished the
Office Of Recorder Of Mortgages for the city and
parish OF New Orleans, which had existed at
least ever since the 10th Of March, 1913, and
created new, distinct and independent office,
which has never been filed until the restor was
| appointed as lie first incumbent on the 25th Of
March, 1856. IF this be true the Judgment ia
clearly wrong in decreeing the defendant to de-
liver the archives Of his extinct office TO the in
cumbent Of new and different office without any
warrant OF law" After reviewing the provisions OF
the new and repeating act, which on all essential
points ia ION al fours' with the case at bar, the
| learned Judge proceeds:
ms r1Ft Las
erection OF q new Office. Indeed, it seems to
imply the recognition Of eristi,g office, whose
| duties were we'll known. IL does not purport to
extinguish that office and to substitute new and
| different one. Il provides for the mode of SD.
pointing new incumbent to fill it at stated in
| tervals for the mode of giving his bond, and for
| the appointment OF his deputy, whose duties are
| to be Commensurate with his own, but for whoae
acts he and his sureties are to be responsible All
these sections relate to the officer and not to the
Office; the office exists independent of the statute
and these simple provisions about the incum-
bent constitute it's whole sub cot matter. But the
repeating clause Is relied upon as accomplishing
done otherwise" \ "As already ram .rlped
It Che new act) introduces no ne,c office unknown
to the law before. Ia fact IL is but a grouping to
tting 1a,cs Literally true In the case at BARI
with very slight changes OF phraseology. and no
says the judge concluding, infer that an ancient
office ,oas thereby abolished and a neto one
created. The literal terms Of the statute do not
seem to require such q construction; its history
subject matter and purpose alike forbid it,
Judge Lea dissented from this judgment
but at the same term of the conrt, in |
Stafford vs.. His Creditors, II A., 40 he
sfirms and interprets the fuding Of the |
majority, AZ follows, viz: "In the case of the |
State on the relation of Holmes vs. Wilt, we |
lately held that the repeating clause appended to |
the revsory acts Of 1855 did not repeal such pre-.
erasttng statutory provisions as ,cere reenacted in
the reotso,y statute" The same principle il again
recognized in state vs. Clay, II A., All, and in
Leyois vs. Gerke. IL A., s32. In the latter case
Sin the case Of Holmes We. Witt we held that the
repeating clause only stcept array such anterior
legislation upon The matter specifically treated of
IN ne neto legislation as nods not retained In the
latter In Stafford va. His Creditors the new law
treated specifically Of the penalty for a fraudu.
lent bankruptcy, and we held that so much OF the
old law concerning the penalty as ,cds not re-
aimed IN the nec was repealed
In the still later case Of State vs. Brewer, az A.,
273, the Supreme Court, after reviewing ali these
cases, says: "We must presume that the Legis-
ature had them in view when IL made use of the
clause which had been 80 fully inter-
preted; and even ii we doubt the correctness of
In which the interests Of society more loudly de.
mand an obedience to the rule stare decisis"
La similar question arising In Mass schusetts,
Chief Justice shaw. in the case of Wright w.
Oakley, Metcaif, 406, says with reference to the
continued vitality and existence Of provisions Of
law re-enacted with the repeating clause: "rhere
was no moment In which The repeating act stood
In force without being replaced By the GORE.
spending provisions Of the revised statute. Ia
practical operation and effect, therefore they are
rather to be considered a. a continuance and
modification OF old laws than an abrogation of
hose old aud the re-enactment Of new ones"
=. In conclusion, 1t is respectfully submitted
that: First the office OF Assistant Attorney
[fAnarnI ayiafnd Junn
March "a, 1877, under act No. IS Of 1874;
and even II act No. 10 did abolish the old
and create new office on the Gath of March, 1877,
the office existed, the salary and qualifications
The salary Of $4,000 for the year 1877 must be
available to any one holding that Office for any
portion OF the time contemplated in the appropria-
ton act. That your honor having decided that re-
ator legally held that off 20 during nearly the
whole of the first quarter Of the year ending De-
cember 81, 1877, and the proof showing an ap-
preparation for that Office for that year unex-
hausted, the mandamus should be made peremp-
tory as asked for.
Secondly, That under the constitutional di.
rectiou the language Of the statutes in question
is just such as should and would naturally have
been used to amend the old law, and is not such
the office and create . new one. That the decis-
ions OF the Supreme Court Of this State are con-
elusive in favor Of the Interpretation that the OF.
fice was not abolished and hence the mandamus
gested that the evidence discloses an unexpended
appropriation of the year 1874 for the Office of
Assistant Attorney General, and if your honor
excludes relator from the fund OF 1877, he is en-
titled to what remains of that of 1874.
Respectfully submitted,
JAMES LINGAN Of Counsel.
State ex rel. Board of Supervisors of the Louis
lana State University and Agricultural and Me-
chsnical College vs.. A. Dubuclet, Treasurer, aud
Jumel, Auditor: Petitioners pray for a man
damus to compel the Auditor and Treasurer. as
custodians of the bonds of the seminary fund,
realized on the lands granted by act OF Congress
Of March 8, 1927, commanding them to present
said bonds to the Board of Liquidation provided
Tor by act No. 8 of 1874, same amounting to
bl37,0 600, for exchange for consolidated bonds on
the terms provided by said act Gov. Nichols,
as president ex oicio of the Board of SUPERVISORS
made the proper affidavit. Rule nisi fixed for
Tuesday. November 27th Henry B. Kelley, at
torney.
SVyTH nISTRICT COTrRr