W. B. Robertson & Bros. v. Caldwell , 14 La. Ann. 864 ( 1859 )

Merrick, O. J.

This suit is instituted against the Second Swamp Land Commissioner, to compel him, by the writ of mandamus, to build the levee on the plantation of plaintiffs in the parish of West Baton Rouge, under the provisions of the tenth section of the Act of the Legislature, approved 16th of March, 1854. Acts of 1854, p. 94.

The District Judge having dismissed the proceeding, plaintiffs have appealed.

The Act under which plaintiffs’ claim relief, is an amendment of an Act approved 3d of April, 1853, to reclaim the swamp and overflowed lands donated the State by Act of Congress of 2d of March, 1849.

The tenth section of the Act of 1854, relied on, makes it the duty of the Engineers in their respective districts, to determine the locality, extent and dimensions of the necessary levees and drains; to drain and reclaim the swamp and overflowed lands; and another clause authorizes the proprietor whose levee has caved in or been destroyed by the action of the current, on the report of three freeholders, who express the opinion that the levee ought to be renewed or repaired by the Swamp Land Commissioners, to notify the Commissioner of the Swamp Land District of the same ; and thereupon it is made the duty of such Commissioner to send his Engineer and have the levee constructed.

The last general appropriation to the Swamp Land Board, was made by Act of 20th of March, 1856. Acts of 1856, p. 214, No. 99.

In 1858, the Legislature ordered back into the treasury, all funds in the hands of the Swamp Land Commissioners. See Act, approved 18th of March, 1858, p. 210.

Since this period, the Legislature has made special appropriations for particular works, but none for the work in question.

This suit was not commenced until the 8th of October, 1858, and hence the Legislature had not only withdrawn the fund from the control of the Commissioners, but the 94th Article of the Constitution had taken effect upon the appropriation of 1856. The Article declares, that no money shall be drawn from the treasury but in pursuance of a specific appropriation made by law, nor shall any appropriation of money be made for a longer term than two years.

There was, therefore, no error in the judgment of the lower court in refusing plaintiff’s demand for want of an appropriation.

Judgment affirmed.

Cole, J., took no part in this case.