The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-11-20
THIRD DISTRICT COURT.
RULE MADE ABSOLUTE TO COMPEL.
THE ASSISTANT SECRETARY OF
aTATE TO PROWEJaesATE.

Judge Monroe rendered the following deci
sion in the case Of John r. Marley vs. Oscar
Arroyo, Assistant Secretary Of State:
Plaintiff claims to have been duly elected
| coroner Of the upper districts Of New Orleans
He AYERS that said election has been duly Ger
| titled by the civil sheriff Of the parish Of Or
leans. He further asserts that In the absence
OF the Hon. ". A: Strong, Secretary Of State,
he has applied to Oscar Arroyo, Assistant
Secretary Of State, to compile and promul-
gate the votes as provided for by section 80 Of
act No. SO of 1877 extra session., and that said
Arroyo refuses to perform this duty. He
prays that the rule be made absolute, and
| that defendant be ordered to compile and pro-
mitigate the votes cast at the late election, as
contemplated and provided for by the section
Of law referred to.
| To this rule the defendant answers that his
objection to compiling and prOmulgating said
votes is based upon the following language In
said election law, to w.t. "The Secretary Of
State, or, In his default, the State Auditor, not
| less than ten nor more than twenty days after
| holding an election" shall begin the cOmpila-
| ton Of tho returns, etc
Defendant AYERS that the Secretary Of
State is absent and unable to act, and that
according to his Interpretation of the law in
question the duty Of compiling the returns
devolves on the Auditor.
| No objection Is made to the form of proce
dure, and no other issue is raised than that
stated. It is admitted that the civil sheriff
has certified the election of plaintiff as coro--
ner and that the Secretary of State Is absent
and unable to act Tha sole question to be
determined then is whether the Secretary Of
State is to be considered Gin default within
senoe and Inability to act; no demand upon
or refusal by him to discharge the duty In
question being alleged.
A careful consideration Of the language Of
the statute and comparison Of that Ian
guage with the provisions of section 1898 Of
the Revised Statutes Of 1870 leads the court
to the conclusion that the word default" as
used, was not intended to apply to cases such
as the one before the court.
Section 1928, II. s., provides that the AS
slstant Secretary of State, so appointed, shall,
after having taken and subscribed the oath
required by the constitution of this State, be
fully authorized to perform any or oil Of the
official acts required by law Of the Secretary
cause Of The latter, and the Secretary Of State
alone shall be responsible for any acts SO per
formed, etc.
Upon the other hand the concluding para
graph of section 80 Of act No, 80 Of 1877 pro-
vdes:
"If the Secretary Of State or State Auditor,
should wilfully neglect or refuse to compile
the returns of election and publish the result
as above provided, or IL he should wlfuIy
neglect to count any vote, as shown by the
returns, or should erase alter or In any man
ner change any returns of election from any
parish or polling place, he shall be deemed
guilty. OF q IelOHy, anu upon GUHVlCtlOu GH6fe-
Of shall be punished by O fine Of not less than
$1,000 and by imprisonment at hard labor for
not less than seven nor more than ten years
IT Is evident that this severe penalty is not
applicable to an officer where failure to dis
charge duty results from necessary absence
or inability but that the lawmakers had In
contemplation only cases Of wilful neglect or
refusal.
Section 3523 II. s.. as we have seen, had hI-
ready provided for the absence or inability OF
the Secretary of State, but that section con-
tained no provision for 81 case where the Sec
rotary, being present, refused or neglected to
act. Upon the contrary, the power Of the
Assistant Secretary, being limited, ceased to
exist the moment the Secretary assumed the
control of his Office. It was, therefore, neces
sary, ia the opinion OF the Legislature that
some provision should be made for cases where
the Secretary, being in charge Of his Office.
faled or refused to discharge Its functions,
and this. and nothing more, In the opinion Of
the court was intended by section 80 Of the
act of 1877.
The rule Is, therefore, made absolute.
State of Louisiana ex rel Board Of Admin
istrators of the Insane Asylum VS.. Allen Jul
mel, AUTHORIZATIONS prays that O. writ of
mandamus issue. directed to the Auditor
commanding him to issue his warrant on the
Treasurer Of the State for the last quarter of
the year 1878 for the several appropriations
made, according to act No. 127 Of 1861, for the
maintenance, clothing, repairing, etc, Of the
said insane asylum.