John Klein & Co. v. Herwig ( 1880 )

Egan, J.

This is an application by John Klein & Co. for a writ of mandamus, to compel Ernest F. Herwig, chairman of the Committee on Auditing and Supervising the Accounts of the Senate, to-issue to witnesses named in relators’ petition, and payable as alleged 'therein, to relators, certificates for attending as witnesses before the Committee on Outrages in the Parishes of East and West Feliciana, East Baton Eouge and St. Helena, amounting to the sum of $1,4G6.20 ; also for a writ of injunction against Iierwig, chairman as aforesaid, enjoining and prohibiting him from disposing of so much of said fund as may be necessary to pay petitioners’ claim, etc.

We know of no warrant and have been referred to no law which authorizes.the suing out of the process of injunction at the instance and for the benefit of a private person in the same proceeding taken for a writ of mandamus which is sued out in the name of the State, at the relation of the firm provoking the proceeding. Act No. 19 of the session of 1876 appropriated seven thousand dollars as the Senate contingent fund, out of which, according to the plaintiff’s allegations, and the resolution of that body, claims of the class alleged upon by plaintiff were to be paid. The third section of the act making the appropriation requires the Committee on Auditing and Supervising the Expenses of the Senate to issue when demanded upon presentation of the proper evidence, certificates against this fund; but expressly prohibits the issuance of certificates in excess of the amount appropriated.

The relator alleges that he fears that defendant Iierwig, who is alleged to be chairman of that committee, is about to pay out the fund to others to the exclusion of his claim. This is a judicial allegation, in effect that the provision against the issuance of certificates in excess of the fund has been violated, and we have no means of ascertaining from the record in whose favor the one issue was made, before inquiry, it might be the jfiaintiff himself. The act makes it the duty of the committee to control the contingent fund. But whether it be the committee or its chairman, the provisions which have been stated show that they are to act upon evidence, of the sufficiency of which they are to judge, and that they are to determine when the limit is reached of necessity. The record affords us no means of deciding this question, and it is evident that the powers and the duties given involve a discretion in those controlling the contingent fund which is inconsistent with the use of mandamus to compel their performance or discharge. The judgment of the court below refused the peremptory mandamus prayed for, dissolved the injunction and dismissed the writ.

Judgment affirmed.