Year: 1870

Judge Dibble rendered yesterday the fol-
lowing important decision:


Forty-two ex-Officers Of the metropolitan
police have applied for writs Of mandamus
against the President and Chief Clerk of the
Board of Metropolitan Police, to compel
them to issue warrants for certain additional
pay claims, amounting in the aggregate to
about eight thousand dollars. The petition
ers set forth that the several relators served
on said force during time specified. faith
fully and with good repute; that by the act
No. 72 Of the General Assembly of 1870, en-
titled an act for the relief of the officers and
members of the metropolitan police, they
became entitled to receive thirty per cent
additional pay for certain period Of service.
The relators aver that provision has been
made for the payment of their claims, but
that the respondents refuse to issue war
rants, as required by law to do, although
demand has been made.


The respondents, through the attorney of
the Board of Metropolitan Pelice, have
made an elaborate return to these applica-
tiOns. They urge certain Irregularities in the
mode of bringing the suits, which it is not
necessary to consider. They insist that the
petitions disclose no cause for the issuance
of the writs; that as president and clerk Of
the board they have no power or authority
to issue warrants for payment Of money
without an order of the board, which has
not been given in these cases; therefore
mandamus ought not to lie. They further
insist that these relatOrs are not entitled to
any additional pay under the law upon
which they base their claim. They aver
that the said law did not absolutely grant
additional pay to officers Of the force, but
only vested said board with legislative and
discretionary power to allow such extra
compensation.


The act of the Legislature cited by re-
latOrs, which became law on the third day
of March, 1870, Notwithstanding the veto of
the Governor, premises that because of the
opposition Of the officials New Orleans and
the other corporations within the metrOpOli-
tan police district, to the execution of the
metropolitan police law, the officers of the,
force have lost thirty per cent discount on
their pay, and authorizes the board to make
good such loss by issuing warrants for
thirty per cent upon the pay Of the year
1869, to all officers not specially excepted IN
the act. The officers so excepted were those
who did not serve six months during said
charged, or who had resigned. (Section
three.) The board were authorized to levy
a special assessment on the different cOrpOr
atiOns within the police district to pay the
extra remuneration SO granted.


On trial the REALTORS introduced in evil
dence the records Of the Board of MetropOl-
itan Police. showing that an assessment had
been levied as provided by law, to pay the
extra compensation allowed. This assess
enough to pay thirty per cent additional
upon the salaries of all the officers of the
force who served during the year 1869.


The statement specially shows the amount
of money already paid to those entitled to
the extra pay, and the amount remaining
unpaid. RelatOrs also introduced. list Of
names Of policemen who have not been
paid the thirty per cent. This list was OBJ
tanned from the board by subpoena duces
.tecum. 1t contains the names Of these sew
eral relatOrs and the several amounts of
their pay for 1869. 1t seems to have been
the basis of the demands now made.


From these documents the relatOrs argue
that they are entitled to have warrants for
the thirty per cent claims made in their
respective petitions. They insist that the
board have, in accordance with the law
aforesaid, allowed them the amounts they
now claim; that having had their thirty per
cent SO allowed, and an assessment having
been levied for payment thereof, they are
entitled to have warrants from respondents,
whose duty it is to sign and deliver war
rants fer all amounts allowed by the board.


The respondents as well as these relatOrs
have misapprebended the powers and the
duty of the Board of Metropolitan Police
in regard to the settlement Of this thirty
per cent pay. They are not legislative
body to determine the amounts due. They
have no duty except to figure up thirty per
cent upon a given sum. The act OF the
Legislature reforred to, which "authorized"
them to pay thirty per cent to certain officers
upon their salaries of 1869, is mandatory,
and charged them with ministerial duty.
The law obtains its mandatory character
from the fact it makes grant to certain per-
sons, who thereby become interested and
may demand the exercise of the authority
given. fWallace, 435. When this act was
passed it became the duty of the board to
pay the thirty per cent to every person to
whom the grant was made, and to make the
assessment to meet the additional expense.
OF course they could not legally pay any
one to whom the grant was not made, for
they have no authority to take money out
Of the treasury Of New Orleans and the
other corporations to satisfy an unlawful
claim.


i. From these considerations. it appears at
once that the only question is, whether these
relators come within the grant made by the
act aforesaid.


An examination of the list introduced in
evidence. as aforesaid, discloses that every
one of these forty-two REALTORS had been re-
moved OF had resigned from the force prior
to the third day Of March, 1870. They are,
therefore, not entitled to the thirty per
cent additional pay, by the very terms of
the law under which they claim.


1t is of no avail to argue that the board
made the assessment as aforesaid with the
view to the payment Of these persons. Even
if such were the case, and it is not proven,
this court could not lend its sanction to the
illegal recovery of money, when the record
shows that the amount must be ultimately
paid by corporations not made parties to
the suits


writs of mandamus prayed for. Judgments
will be entered. in the several suits accord
ingly.