The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-11-13
SIXTH DISTRICT COURT.
THE DIBBLE CASE.
Mandamus ana Intervention of y, C.
Egan, Assistant Attorney Gem
nr01-ElntI, riasR

EgaH, Assistant Attorney zen"
eral-Beth Dismissed.
State OK rel. Henry O. Dibble vs. Allen Jumel,
Auditor State of Louisiana, J. @. Eagan, Assist
ant Attorney General, intervenor.-The relator
represents that he s entitled to receive from the
Auditor of the State of Louisiana warrant on
the Treasurer for an amount of salary as Assist
ant Attorney General from January 1, 1877, to
March ~, 1877, the date upon which his success
sor qualified
Relstor was appointed Assistant Attorney Gen
eral under the provisions OF act No. 35. approved
The present Assistant Attorney General has
interviewed In these proceedings, and urges his
appointment to office by virtue OF the provisions
OF act No. 10, approved March "a, 1877, and
claims that the appropriation OF $4,000 made by
act A. extra session OF 1877, is solely for the Of
foe crested by said act NO. TO- OF which he is in
cumbent, and that he ia entitled TO all the salary
and emoluments thereof and to the benefits OF
ell appropriations therefor, and he asks this
court TO sdjudge him entitled to the $4,000 sp-
| propriated.
The Auditor, through the Attorney General,
| resists the demands OF relstor, and alleges that
during the entire time for which he demands re-
muneration he was in active hostility to the gov
ernment of the State, and actually participated in
| q conspiracy to resist and overthrow the govern
ment.
This portion of the defense has been urged
very strenuously by the Attorney General and
counsel for intervenor, but il appears very clearly
to me thst there exists difficulty in detsrmn-
ing the proposition.
There has been but one government in the
State Of Louisiana since the 9tn day of January,
1877, to which the allegiance Of the citizen was
due, and, IS result ii government was c1mpe
tent in force and authority to execute the laws,
and when the power exists to enforce and pun
ish, and it has not been deemed necessary by
the constituted authority to exercise that power,
it must be an interference by the judicial with
the executive prerogstives to determine o fact
entirely subject to the will, power and discretion
OF the Governor. The act No. 35 of 1874 under
which relator claims title, provided that the As
sistant Attorney General should hold his Office
during the term Of the Governor, and that he.
the Assistant Attorney General, should be SUBJ
ject to removal or impeachment. When, there
fore, His Excelencv Governor Nicholas assumed
the duties of the office to which he had been al
ne s sr "y ae p5e e a shG1 s p p9ar
to appoint q successor was in him, or with
out this, the General Assembly was in regular
session, snd could have proceeded to the dis
missal OF relstor. II neither. the executive nor
the legislative branch of the government
thought it wise or proper to assert their
powers, / know Of no authority
in the judiciary, in proceeding like the present.
and counsel have furnished me none which would
warrant decree Of forfeiture for acts the rem.
edy for which is provided in the statute.
1t is true, as commended by counsel, that the
courts are bound to take judicial notice OF facts
historically known, and it 10 in view of this prin
ciple as well as the facts established in this
cord, that have expressed an opinion in opposi-
ton to this theory of forfeiture argued by the
Attorney General. In my opinion the merits of
this controversy rest on other facts and on well
defined legal principles.
In 1874 the Legislature Of the State of Louisi |
ana created the Office of Assistan Attorney
General, and that statute remained on the statute
books until the Oath day OF March, 1877 The
interveaor, and present Assistant Attorney Gen.
eral was first appointed under this law, viz: on
the 10th of March, 1877. and filed his oath of
office on March 22d, 1877; on the Oath Of March,
1877. the act No. 10 was passed, which was an
act asserted in it's title, San act to authorize
the Governor to appoint an Assistant Attorney
General, defining mis- duties and fixing his COM
pensation; to fix the commissions which snail be
paidths Attorney General upon all sums collected
by him in litigased cases and paid into the State
treasury, and to repeal act No. 81, approved
March g. 1874" it is very clear from this statute
that in legislative contemplation the act Of 1874
was still in force at the passage Of act No.
10, and do not conceive that this view
will be questioned. The first proposition, then,
to be considered u.s. did the act No. 10 create q
new Officer And this must appear from the |
words OF the statutes it matters not when the
power to repeal and create exsts-whether the |
new statute clothed in the words Of the old or |
in different words-it is sufficient III the old has
been swept from the law. In reviewing the legis-
lation which gave rise to the creation OF the office
of Assistant Attorney General in 1S74-its repeal
and subsequent enactment In 1877-the only pur-
pose that could be served would be that of ascer-
tanning from the two acts the will of the law
have held such review within the province and
duty OF the judge, 1t has always been restricted |
to such laws when the words Of the statute are
ambiguous and susceptible of different interpre-
tat0ns. Under such restriction it ia the duty of
the court to give such construction as will not
lead to injustice or absurdity. The act Of 1874
fixes the duties and salary Of the Assistant At
torney General; the act Of 1877 fixes the duties
and salary Of the Assistant Attorney General.
Both acts require the same qualification and fix
the same salary, viz: $4,000 per annum. The du-
ties defined by the act Of 1877 are distinct from
those defined by the act Of 1874, and it is ex-
10, approved March a. 1877, that the act creating
the Office Of Assistant Attorney General, APP
proved March 3, 1874, is repealed.
1t is not necessary therefore to enter into
intention Of the Legislature beyond the words Of
the statute. The words are clear and admit of
only one Interpretation and that is that the
Legislature abolished an old Office, created new
one and provided for the appointment Of a new
officer. II An. 439.
As far, therefore, as the intervenor's claim to
the Office Of Assistant Attorney General exists at
this date, it is by virtue of the act Of 1877.
In my mind there is no doubt that relator held
office under act No. IS Of 1874 until his successor
was appointed and qualified under the same act,
viz: until March %, 1877. Whether the relator can
obtain from the treasury of the State of Louis
by act No. AZ, approved April 4, 1877, is another
question.
The appropriation for the Office Of Assistant
Attorney General by this act reads:
SECTION !. Be it enacted, ETC.. That the fol-
lowing sums, or as much thereof as may be neces-
sary, be and they are hereby appropriated from
any moneys in the treasury, not otherwise appro-
priated, to the following persons for the year
salary, Assistant Attorney General, three thou
sand dollars"
The only Assistant Attorney General at the time
Of the passage of this act was the intervenor-the
nff,nn ~ aka H.
to the law was the one created by act No. 10,
approved March "a, 1877, and it was for this l
office that tho appropriation or 80 much Of it as
was necessary, was made.
1t has been stated that in the opinion Of the !
court relator held office under the act of 1874
until March 22,S18T. The authority for this
opinion is based on article 122 Of tbs constitution
Of the State and the decision OF the Supreme Y
Court in 81 An 138 that the article Of the const-