The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-03-31
THE STATE DEBT AND ITS LEGAL RE-
IATIOeS.

nj the interest and principal Of the State
consols can be coerced, it remains to inquire
whether there is any power In the State
courts which can be successfully invoked for
the same purpose.
wa have seen that mandamuS can only be
used for two purposes la the Federal courts:
/ Under the thirteenth section Of the judi
eiary act to compel an officer, or other person
acting under the authority OF the United
States, to perform some ministerial duty. Q.
AS an anciIlary or auxiliary proceeding, to
enforce judgment previously obtained In
suit at law, or In aid Of a jurisdiction acquired
in particular case.
We have seen that the decisions OF the Su-
preme Court OF the United States are uniform
to the effect that the jurisdiction of the Fed
eral courts to issue the writ does not apply to
officers or persons acting under the authority
OF State laws. We have also seen that the
cases in which the writ has been employed
under the second head were those where q
Judgment on bonds or some other form Of in
debtedness had first been obtained, execution
issued aulta bona returned Hence, the au-
thorities on which the advocates of the bond
holders rely have no application TO the case
In hand
T. Because they relate to cases where the
writ was granted; not to State official, but
to some officer or person acting under the
authority of the laws of the United States
And
Q. Because In the other cases q judgment
had been obtained against q county, a town
or q city. Unless. therefore, the Auditor,
Treasurer and Board Of Liquidation occupy
the same legal relation that town council,
board Of aldermen, or county commission
ers occupy, they never can be made subject
to the writ of mandamus. But we have seen
that they do not occupy the same legal rela-
tion. They do not owe the debt individually,
that Is certain. They do not officially repre- |
sent corporation or taxing district Of any
kind like council, board Of aldermen or
county commissioners in the adiudged cases, |
and cannot therefore, be sued In q court of
law These are State officers for the per- |
Torrance of State duties, not liable to suit to |
recover Judgment, unless the State can be |
made party. And / have respectfully sug-
gested heretofore that the confusion In the
case, and the misquotation Of authorities,
have resulted from inattention to the distinc-
ton between a sovereign State and the politi- |
cal subdivisions Of 1t.
proceeding in mandamus differs from the |
common law, 1t is true but in practical results |
the bondholder will fare no better than In the /
Federal courts. Mandamus In this State Is
an original proceeding: an action In and OF
itself upon proper state of facts, and in this |
respect differs from the common law writ I
But it Is OF common law origin, and the prin-
cples that apply at common law also apply |
to il as q remedy in the State courts 1t may
be commenced as an original proceeding by
petition In the ordinary way but 1T can only |
be used to compel the performance Of minis
terlal duties pure and simple, just as it al
ways has been Mt common law.
Now ii this remedy Is invoked, 1t must OF
course be directed against the Auditor, Treas
iIrer and Board OF Liquidation, because these
are the only officers mentioned in the fundlng
act as having anything to do with the levy
and collection of the tax to pay interest and
principal OF the consols. LII town, city or
-narish where the Legislature authorizes o
s,ai,t TO be contracted, the law authorizes and
directs the proper officers OF such political
corporation TO levy certain TAX L p pay inter
lated time: and II the officers neglect or
refuse to levy and collect the tax, mandafnuS
may issue without first obtaining Judgment
..n enforce the performance OF a ministerial
duty. But has any such thlng been done IN
regard to the State debit
In a general way certain State officers are
referred to in the funding act, but there are
no specific duties enloned ana prescribed III
regard to the levy and collection OF taxes,
which could ever be successfully reached TO
comnel d performance of them by mandamus.
Could thew be Jointly mandamused There
Is no single act that they are required Jointly
10 perform Is the Auditor alone TO be man
damused to levy and collect the interest tax
He can answer that he has but q limited
function in the assessment, levy and collee-
tion Of taxes, and that there Is no mOdus
opeYandi set out in the funding law to enable
him to take a single step. And this answer
ka efficient bppaMgp manUAmllS does
not apply unless all the duties required of
the officer are specifically defined, so that In
and OF himself he can proceed to the per-
Torrance OF them.
hers of the Board of Liquidation could an
swer in the same way. l venture TO say that
i'm case the mandamus were sustained, there
is not Judge Of any OF our courts that could
felI any or all of these officers what their du-
ties were under the funding act or under the
amendmentof 1874 .
But suppose this were otherwise, and there
oould he a successful proceeding by manda
mus. 1t Is an old adage that lone man
may lead horse to water, but Thousand
cannot make him drink In the first place,
If the State sets its face against the payment
of the bonds, the coming convention can re-
constitute the autonomy of the State so as to
dispense with all these Offices and substitute
nothing of their kind or pass an ordinance
forbidding them to levy and collect any 1ur-
ther tax to pay interest or principal, or these
officers could resign to evade the execution OF
the writ, and their successors could do the
same indefinitely, or they might De Wllling
out of State pride to suffer the pen
atty of disobedience of the writ
And this brings us to a most interesting /
phase of this question. If the State should
interfere and the State officers should plead
it's authority for their refusal to act, the State
courts might sustain the last law on the sub
ject, including the highest court of the State.
The Supreme Court Of the State might hold
tnat the Legislature OF 1874 exceeded its con