State ex rel. Mahan v. Dubuclet

Taliaferro, J. The relator, alleging liimself to be the State tax collector for the Third District of New Orleans, complains that the defendant, as State Treasurer, refuses to allow him, in a settlement with the treasury, a credit for $14,497 66, the amount of certain State warrants received hy him according to law in payment of taxes, and which were duly canceled, but were afterwards lost by the relator, or were stolen from him. Tlie judge a quo, on being applied to by the relator for a mandamus directed to the defendant ordering him to allow the credit claimed, issued an order nisi, and the defendant answered that he can only settle with the relator, as tax collector, in the manner prescribed by law; that he can only, in that capacity, make settlements with the Treasurer by the actual payment of current money or by State warrants legally received by him as tax collector, and actually produced aud delivered over; that respondent, if he has declined to make settlements with relator, has goood and sufficient reason for refusing. The judge a quo, on hearing the parties, made the rule absolute. From this order the defendant has appealed. A motion to dismiss the appeal has been filed on the part of the relator on the grounds: First — Dubuclet, Treasurer, was not made a party to the appeal. This ground was abandoned by tbe appellee. Second — That tbe appeal was taken by the Governor of the State, -who is without power to prosecute this appeal. It is shown that at the time the appeal was taken the Attorney General was absent from the :State. This ground is untenable, the Governor being the proper representative of the State and bound to protect her interests. Third — That a pecuniary interest exceeding five hundred dollars is not shown, and, therefore, no appeal lies to this court. The affidavit [603] sets forth that the appellant is injured, and aggrieved by the judgment to the extent of more than five hundred dollars, and the record shows the amount in dispute to largely exceed five hundred dollars. Fourth — That the affidavit is insufficient and signed by a party without authority to administer oaths. The affidavit was sworn to before the Assistant Secretary of State, who is authorized, in the absence of the Secretary of State, to discharge all the duties of the Secretary of State, and that officer is authorized to administer oaths. The fifth objection is without weight. The motion to dismiss is overruled.