State v. Bordelon

6 La. Ann. 68

• Court: Supreme Court of Louisiana
• Decided: February 15, 1851
• Status: Published

Opinion

The judgment of the court was pronounced by

Eustis, C. J.

The relator alleges that he is by law entitled to receive from the State treasurer the sum of two thousand five hundred dollars ; but that Louis Bordelon, Auditor of Public Accounts, refuses to deliver to him the warrant upon the State treasurer for the said sum, without which warrant it cannot be legally paid. A rule to show cause why a mandamus should not issue to the auditor and treasurer was granted, and the cause shown by both is the same, to wit: “that there is no law specially appropriating the amount of money for which a warrant has been demanded in this case, and that without a specific appropriation no money can be drawn from the treasury, under the 93d article of the Constitution.

The only question, then, in this case is, whether any specific appropriation has been made by law of the sum for which the warrant is claimed, in conformity with the Constitution of the State.

The judge of the First District Court of New Orleans, in which these proceedings were instituted, after a careful examination of the question submitted, made the rule absolute, and directed a peremptory mandamus to be issued as prayed for.

The attorney general, representing the auditor and treasurer, appealed from this decision.

We concur with the district judge in the view he has taken of the statute under which the relator claims. We consider the mandamus as enforcing the performance of an act on the part of public officers strictly ministerial, in which there is no discretion on their part ministerial or otherwise, and that it is the proper remedy for a case of this kind. The United States on the relation of Stokes v. Amos Kendall, Postmaster General. 12 Peters, 524.

We do not find the statute under consideration to be in conflict with the sections of the act of 1847, to establish and regulate the treasury department, cited in argument by the attorney general.

The judgment of the district court is therefore affirmed.