
    No. 5376.
    State ex rel. Albert Baldwin v. A. Dubuclet, State Treasurer— State of Louisiana, Intervenor.
    This appeal was made returnable at tbe session of tbe Supreme Court to be held. at New Orleans on tbe first Monday of November, 1874. Before tbe return day, to wit, on tbe twentieth of July, 1874, tbe relator procured tbe consent of tbe Governor fox tbe transfer of tbe case to Monroe, and for its trial at tbe term held at that town. Tbe Governor also employed an attorney for tbe defense, notwithstanding tbe opposition of tbe Attorney General and of Dubuclet, tbe defendant..
    The Governor bad no authority to consent to tbe transfer of this case, and to employ counsel as he did. Tbe Attorney General is the proper officer to represent tbe State in all her law suits, and tbe act 21 of tbe acts of 1872, on which tbe Governor relied, was not intended to deprive the Attorney General of the control and management of bis cases, but only to provide for certain contingencies in which be may designate an attorney to act on behalf of tbe State. Under that statute.be was empowered to appoint counsel to act in this suit.
    Tbe citation was necessary to perfect tbe appeal. The defendant’s case can Dot be tried without bis consent, except at tbe time and place designated in tbe citation. A trial at a different place would be a trial without a citation. Besides, be is entitled to tbe delay fixed, to prepare his defense.
    The plea that defendant is not interested, has no force. If not interested, why was he cited and made a party?
    There is nothing in the act for “funding the obligations of the State,” relied on hy relator, which confers on him or implies a right or duty, as “ Discal Agent,” to recover from tbe State Treasurer, and to bold and account for, under tbe obligations of his official bond, all the moneys belonging to tbe State, or to choose a bank for such purpose, and nothing which imposes on said treasurer tbe duty to deposit said moneys with tbe relator, and therefore there is no cause for tbe mandamus prayed for.
    It is only where a specific, ministerial duty is imposed by law on an officer, that tbe writ of mandamus can properly issue against him. Tbe term “ fisoal agent” does not necessarily mean depositary of tbe public funds, so as, by tbe simple use of it in a statute without any directions in this respect, to make it tbe duty of tbe State Treasurer to deposit with him any moneys in tbe treasury and confer on such agent power to compel such deposit.
    APPEAL from tlie Superior District Court, parish of Orleans.
    
      HawJcins, J. Kennard, Home & Prentiss, for relator and defendant.
    
      A. P. Field, Attorney General, and J. Q. A. Fellows, for defendant and lor intervenor.
   On Motion to Dismiss.

Wyly, J.

The relator has appealed from the judgment rejecting his mandamus proceeding to compel the defendant to recognize him as fiscal agent, under act No. 3 of the acts of 1874, and to deposit with him all the funds of the State.

The appeal was made returnable at the session of the Supreme Court to be held at New Orleans on tbe first Monday of November, 1874. Before tbe return day, to wit, July 20, 1874, tbe plaintiff procured tbe consent of tbe Governor for tbe transfer ot tbe case to this place, and for tbe trial thereof at this term ; and under act No. 21 of the acts of 1872, the Governor employed an attorney to take charge of the defense.

Tbe Attorney General objects to tbe trial of tbe case before tbe return day, and at this term of the court; he denies the authority of the Governor to give consent for its transfer, and also his authrity to appoint counsel to assist or supersede him in the management Of the case.

Antoine Dubuclet, the defendant, also refuses to consent to the trial of the case here.

Looking to act 21 of the acts of 1872, the statute under which the Governor acted in this case, we find that he “has the right in ease of the absence, death, resignation, or inability to act in any particular case of the Attorney General, or proper district attorney, or where either of them may be directly interested, a right to designate an attorney for such case to act in behalf of the State, for the protection of the public interest.”

Was the Governor authorized under this statute to consent to the transfer of the case and the trial thereof at this term, notwithstanding the opposition of the Attorney General who tried the case in the court below? We think not.

The Attorney General is the ¿roper officer to represent the State in all her lawsuits, and the statute in question was not intended to deprive him of the control and management of his cases.

In order to protect the public interest in any particular case where the Attorney General was interested, or was unable to act from death, resignation, absence, or from any other cause, this statute authorizes the Governor to appoint an attorney for such case. It does not authorize him to give consent for the transfer of any particular case and for the trial thereof before the return day, at a different term of the court. The act gives him no personal control of the case whatever. When the condition happens upon which he has authority to supply counsel for the State, the attorney designated by him takes control of such case.

The attorney designated by the Governor in this case does not consent to its trial here. But under the statute the Governor was utterly without authority to appoint an attorney to act in this case, because the Attorney General is not personally interested, he has not resigned,, nor is lie dead, or absent, or unable to attend to the duties of his office. He appears to have faithfully defended the case in the court below in behalf of the State, the intervenor, and in behalf of Dubuclet, the defendant. He gained the case, and he will doubtless be ready to meet the relator and try the appeal at the time and place where it was made returnable, and where he was cited to trial. Because he refused to try the appeal at a different place and term, and before the return day, it can not fairly be said that the Attorney General is unwilling or unable to act, or that the public interest confided to him has in any manner suffered or is likely to suffer.' In refusing to try the case, as desired by the relator, he has simply exercised a legal right, of which the appellant has no cause to complain.

The defendant, Dubuclet, is interested in this case; he is the party against whom the mandamus is sought, and he has not consented to the trial here. He has been cited to meet the relator and try the appeal on the first Monday of November next, at New Orleans. Under section 7 of act 35, of the acts of 1874, he can employ special counsel for his defense. If the case is tried now he may well complain that he has not been heard; because to try the case at a different place, and before the return day, is equivalent to' a trial without citation and an opportunity to make a defense.

What is the use of citing the defendant to the trial of this appeal at New Orleans on the first Monday of November, 1874, if he can be condemned rightfully at the July term of 1874, at Monroe?

If citation was necessary to perfect the appeal, the defendant’s case can not be tried (without his consent) except at the time and place where he was cited.

The appellant contends, however, thatjthe defendant has no interest. If -so, why was he sued and cited below ? If his presence was necessary at the trial there, it is equally as important here. And the trial of the defendant before the day he was cited to trial, and at a different place, is certainly a trial without citation. He is entitled to the delay from the time the appeal was taken until the return day thereof to prepare his defense and to employ special counsel, if he chooses to do so.

The defendant is the party sued and against whom our decree must be enforced, if the mandamus be made peremptory. He is a necessary party, and the case can not be tried here .without his consent.

It is therefore ordered that this appeal be stricken from the docket, with leave to the appellant to withdraw the transcript and file it at New Orleans, in conformity with the order of appeal.

Ludeliiíg, C. J.,

dissenting. The simple question now before the court for decision is, can the chief executive of the State consent on the 'part of the treasurer, and in spite of his opposition and of the Attorney General's, that the case may be removed to Monroe for speedy determination?

The case is one in which an officer of the State is proceeding, by mandamus, against another officer of the State, to compel him to perform a ministerial duty. It is made the duty of the chief executive of the State “ to see that the laws are faithfully executed.” If it be a ministerial duty of the treasurer, under any law of the State, to do what he is required to do in the relator’s petition, it is the duty of the executive to see that the law be executed. The case by law, is a preference case, and I am at a loss to imagine why the Governor could not direct the case to be submitted for decision, by the Attorney General, and if he refused or neglected to do so, to employ other counsel. Dubuclet personally, is not before the court; it is the treasurer alone who is before the court, in his official capacity. And in numerous cases running all through the 24th, 25th and -26th Annual, this court has recognized this fact, that when an officer is proceeded against in his official capacity, he has no right to appear in person or by attorney selected by himself, but must be represented by the Attorney General or some other attorney selected by the Governor. Act of 1872, p. 62.

This case was brought here by consent of the relator and the Governor.

The Attorney General applied for time to file a brief after the case had been submitted, which[was allowed, and he filed his brief without urging this want of consent; and at the last moment he files another ' brief through another attorney, urging this want of consent on the part of the treasurer. I do not think it should be considered; but if it be, I do’not regard the objection valid.

What honest reason can be urged against an early decision, on the construction of a law, defining the<’official duties of State officers ? I can not imagine] any, and am the less inclined to consider the objection oi want of consent.

On the Meeits.

Howell, J.

The relator alleges that he was elected and has duly qualified as Fiscal Agent of the State under act No. 3 of April, 1874, known as the Funding Act and which created a board of liquidation, composed of the Governor, Lieutenant Governor, Auditor, Treasurer, Secretary of State, Speaker of the House of Representatives aud such fiscal agent, chosen by said officers, that he has furnished bond in the sum of $250,000 as required by said Board, ‘‘that as fiscal agent of the State, it is his duty to receive from the State Treasurer and to hold and account for, under the obligations of his official bond aforesaid, all the moneys belonging to the State,” that he has chosen the New Orleans National Bank, whereof he is a director and the president, as the place of deposit of the State funds and so notified the Treasurer, whose duty it is to deposit the same with the relator as fiscal agent, but has failed and refused to do so, though requested, and he prays for a writ of mandamus commanding said Treasurer to recognize relator as the fiscal agent of the State and to deposit with relator in his said capacity all the State funds now on hand or which may hereafter come into his the treasurer’s hands or control.

The treasurer denies that the relator has any legal right to demand of him as treasurer, the moneys of the State or that there is any law which gives to the relator the right to 'the deposit of the money of the State, and he adopts the answer of the State which intervenes and alleges that under the constitution and laws the treasurer is the only officer authorized to receive, keep and disburse all moneys of the State and he can not be interfered with or controlled in that respect by any authority; that there is no provision in the “Fundingbill” which makes it the duty of the treasurer to pay out to or deposit with the relator or the latter to receive any of the State moneys, and hence there is no cause or ground for the writ of mandamus; that the title of the “Funding act” does not express the object of the appointment of a fiscal agent of the State with power to receive and hold the moneys of the. State which is a matter foreign to the objects of said act; that by existing unrepealed law the treasurer is required to deposit the State moneys in some safe bank with which he shall keep an account and the said deposits can only be removed upon the consent of the Governor and the causes therefor must be reported to the legislature) that under the said law he has the moneys of the State deposited in the Louisiana National Bank, the safety of which would be jeopardized by depositing them with an individual not an officer of the State and not required by law to give a bond. From a judgment refusing the writ of mandamus, the relator has appealed.

The title of the funding bill and the sections relied on by the relator, are as follows: “An act to provide lo^mding the obligations of the State by exchange of bonds) to provn!KJQBh|Müoal and interest of said bonds; to establish a board of liquidation^Hphorize certain judicial proceedings against it; to define and punish violations of this act) to prohibit certain officers from diverting funds except as provided by law and to punish violations therefor ; to levy a continuing tax and provide a continuing appropriation for said bonds) to make a contract between the State and holders of said bonds; to prohibit injunctions in certain cases; to limit the indebtedness of the State and to limit State taxes ; to annul certain grants of State aid) to prohibit the modification, novation or extension of any contract heretofore made for State aid) to provide for the receipt of certain warrants for certain taxes and to repeal all conflicting laws.

Section X. “Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, That for the purpose of consolidating and reducing the floating and bonded debt of the State, the Governor, Lieutenant Governor, Auditor, Treasurer, Secretary of State, and Speaker of the House of Representatives are hereby authorized to cause to be prepared, and to issue bonds, to be known as “consolidated bonds of the State of Louisiana,” of the denominations of one hundred, five hundred, and one thousand dollars, to the amount of fifteen millions of dollars, or so much thereof as may be necessary, all payable forty years from the first day of January, 1874, and all to be numbered consecutively, and made payable to bearer, and to bear interest at the rate of seven per cent, per annum, payable semi-annually in the city of New York and the city of New Orleans, on the first day of July and January of each year, and coupons for such interest'shall be attached thereto; said interest and principal to be payable in lawful money of the United States.

“Sec. 2. Be it further enacted, etc., That the parties designated in the foregoing section shall constitute aboard of liquidation, and a majority of said board shall elect a fiscal agent for the State, who shall be a member of said board.

Seo. 7. Be it further enacted, etc., That a tax of five and-a-half mills on the dollar of the assessed value of all real and personal property in the State is hereby annually levied, and shall be collected for the purpose of paying the interest and principal of the consolidated bonds herein authorized, and the revenue derived therefrom is hereby set apart and appropriated to that purpose, and no other; and that io shall be deemed a felony for the Fiscal Agent or any officer of the State or board of liquidators to divert the said fund from its ligitimate channel as provided, and upon conviction the said party shall be liable to imprisonmeaáMÉJlp-ot more than ten years nor less than two, at the dir jM^Bp^ne court. If there shall, during any year, be a surplus arit ‘l^Urom said tax after paying all interest falling due in that year, such surplus shall be used for the purchase and retirement of bonds authorized by this act, said purchases to be made by said board of liquidation from the lowest offers, after due notice, provided, that the total tax for interest and all other State purposes, except the support of public schools, shall never hereafter exceed twelve and a half mills on the dollar. The interest tax aforesaid shall be a continuing annual tax until the said consolidated bonds shall be paid or redeemed, principal and interest} and the said appropriation shall authorize and make it the duty of the auditor and treasurer, and the said board, respectively, to collect said tax annually, and pay said interest and redeem said bonds until the same shall be fully discharged.”

Sec. 17. “That all acts or parts of acts'in conflict with this act, or-any section thereof, are hereby declared to be repealed, and that this aet- shall take effect from and after its passage.”

It seems a sufficient answer to relator’s demand to say that there is nothing in the foregoing which confers on him or implies a right or duty as fiscal agent “ to receive from the State treasurer and to hold and account for, under the obligations of his official bond aforesaid, all the moneys belonging to the State,” or to choose a bank for such purpose, or that imposes on the said treasurer the duty to deposit said ■moneys with the relator, and therefore there is no case, no cause for the writ of mandamus.' The act does not specifically prescribe any duties of the fiscal agent, confer on him any special powers or make any reference in the title or elsewhere to the deposit or the choosing of a place of deposit of the moneys of the State; and it is only where a specific ministerial duty is imposed by law on an officer, that a writ of mandamus can properly issue against him.

But it is contended on behalf of the relator, that the phrase “ Fiscal agent of the State” had, at the time the Funding act was passed, a distinct, well understood meaning, and that the legislative intent in using it was manifest, as the depositary of the State funds, that is, the fiscal agent of the State created by this act was, by necessary intendment, the depositary of the State moneys, which however, are to remain there or with him subject to the checks of the State treasurer just as they are now kept and checked on by the treasurer in the bank selected by Jiim under previous legislation. And this theory, it is said, is deprived from and supported by the laws relative to the fiscal agent of the city of New Orleans, which was made the depositary of all the city funds and the law making the Citizens’ Bank the fiscal agent for the funding of the floating debt in 1870.

Our examination of these laws does r "•» us to the conclusion, as suggested, that the term fiscal agent°; tor ^ssarily the depositary of the public funds so as, by the simple uso3,13 it in a statute, without any directions in that respect, to make it the duty of the city or State treasurer to deposit all moneys therein and confer on such agent power to compel such deposit with him or it.

. As to the fiscal agent for the city of New Orleans, the laws referred to (see acts 1856, pp. 144, 145, acts 1870, extra session, p. 46), are explicit in directing when and how such agent — a bank — shall be chosen, what shall be placed in its keeping, the purposes thereof, how drawn, etc., while in the act under review, no such directions appear and nothing is said except that a majority of certain designated officers, composing a board of liquidation, shall elect a fiscal agent for the State, who shall be a member of said board and shall be subject to certain penalties should he divert a' certain fund. But every officer of the State and board of liquidators are embraced in the same provision. And as to the “fiscal agent” under the funding act of 1870, (session acts 1856, extra session, p. 153), the president of a bank named, was designated by the law for the purpose, in conjunction with the Governor and Auditor, of negotiating the bonds authorized by said act, but no reference was made to the custody of the public moneys. The duty was specific and limited to the object of said act. We find in neither law nor any other, any thing that implies even that the use of the term fiscal agent in a statute confers the right to the public funds. By existing laws the treasurer is to deposit the State moneys in a bank selected by him, and he may, with the concurrence of the Governor, remove them to another if they become unsafe, (it. S. 3773), and there is nothing in the present funding act at all inconsistent therewith and they are therefore not repealed or affected by the repealing clause of this act.

Whatever may be the duties of the relator under the present funding act, it is clear to us that it is not one of his duties to demand, receive and place in a bank chosen by him or elsewhere the moneys of the State, those arising under the provisions of this act or from any other source. This duty pertains exclusively to the treasury department, and the moneys there can, under the constitution^ only be withdrawn by the treasurer under a specific appropriation made by law.

Judgment affirmed.  