The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-11-29
THE COURTS.
sixth District Court.
q. Diamond VS.. George Cam.

make the appointment aforesaid is derived from
the charter of the city; tlat George CAIN without
authority OF law and In direct violation OF his (pe-
titioner's) rights. claims and usurps the Office of
chief OF police and preends to perform the duties
thereof, 10 petitioners injury and prejudice, and
refuses TO recognize his rights. BE com plains
that these acts OF Cain inct irreparsble loss and
iTjury upon him.
To this claim the defendant Cain answers that
plaintiff is not the chief of police of the city of New
Orleans. and has legal title claim to the office
by virtue OF any law or provision of the Constltu
ton Of the State Of louisiana that there is no
such Office as that of chief OF police in this city
Known TO or created by the laws or the COnstitu.
ton OF Louisiana now in force; thatJ. z. Conway
bad no right to create any such Office, or make any
appointment to it that Diamond has no right to
the remedy of the writ of quo lcdrdntO, because his
claim is uDfounded in law, in disregar contempt
and disobedience of the laws Of the State. aud an
attempt 10 create a state Of anarchy; that the
Office of chief of police of New Orleans. and the
right OF the mayor to appoint thereto, by several
acts Of the last Legislature have been abolished;
that the said mayor is now without authority to
appoint officers or men OF the police force Of the
city \; that be (respondent) was appointed super.
intendeDt Of the metropolitan police by the police
board and has qualified, and is no, nov holding
have TINS stated at greater length than usual
the pleadings ia the case, because the decision of
some points involved In 1t will turn materially
upon the issues thus categorically made. The
defendants answer contains other allegations, but
they are general in their nature and believe are
substantially contained in the above synopsis.
The first point TO be decided is as to the right of
Diamond to prosecute writ Of quo tcdITdntO,
with view of testing the right by which de-
fendant holds the Office of superintendent of the
metropolitan police force, so far as defendant pre-
tends in bis estimate Of the powers delegated to
him 10 supersede plaintiff as chief of police of the
city of New Orleans. H-"
Ii is urged by defendants counsel that under the
act of the Legislature of September and October
Is, 1861 the only person who has the right TO in.
stitute the proceeding is the attorney general of
the State or that, il instituted by private per-
son, the assistance or appearance OF that officer is
indispensable. 1
To sustain this position it is necessary for de.
PENDANT to establish the following propositions,
viz:
That the two acts referred to specially repeal,
first, the article of the code of practice from
s67 to 1913. inclusive; second, that they repeal
specially the l30th section Of the act of 10th
March, 1856, amending the city charter; and
third that besides repeating these laws, the said
acts deny to the plaintiff the present remedy, ex-
cept with the assistance OF the attorney general.
1t seems TO me quite immateriai whether the
two acts repeal the previous legislation above
mentioned; because, concediDg, for the sake of
argument that they do. it is very plain they afford
the same remedy as that provided for by the re-
pealed laws. The first act directs the attorney
general TO institute an action in the name Of the
people, against persons offending, in the fol-
lowing cases al. When any person shall usurp,
in,rude into, or enld1gftdly hold or exercise any
public office franchise within the State." etc.,
etc. BY subsequent sections of the same act, be
may emulate the interests Of the private individ
ual who is really entitled 10 the Office with the in
terests of the whole people, and Judgment rem.
dered In favor of the people inures to the benefit
of the private person interested and the Office is
sdiudged in the same action to belong to him.
This act cannot be considered as being,
in TERMS IN conflict with provisions of the
Code Of Practice on the subject of quo
rdrTdnto; and specially, it only repeats
by its eleventh section. the provisions Of the
Civil Code on the same subject. As the Civil
Code has no provisions whatever on the remedy
known as the writ Of quo 1cdTTGisto, ii is some.
what difficult to ascertain what law Is repealed by
this section at all events IL is certain the articles
of the Code of Practice are thereby left in force.
But the second act leaves no room for doubt In
the anne already cited, the first section of
the amendctory act or 18th october, 1865. pro-
vides that the action may be brought "by the
district attorney or district attorney pro tem and
tor the parish of Orleans by the attorney general,
any Other person Interested, in the name of the
State,n etc.
That r. E. Diamond is a person interested In
the question before the court may be denied by
counsel for defendant, but apprehend that de-
NAL is not to be considered as seriously made
and, consequently, not entitled to any further
Iefutsiion than that which results from the mere
statement of the case already made. The second
condition is that the action be made In the name
of the State. Had Diamond instituted ordinary
proceedings he would have been obliged to sue in
the name Of the State as nominal plaintiff; but
D proceeding like the present this Is unnecessary.
The writ of quo todTrdntO is essentially public
remedy; it issues for the redress of wrongs TO
individuals, but 1t only issues IN the name OF the
State.
IL is next urged that the writ of quo lcd1T1nto
only issues when there is usurpstion OF office.
That one who holds under color OF law is not an
usurper, and that il is proven the defendant at
least holds under cover OF law. This point was
raised in the case of Reynolds VS.. Baldwin, A. X.
1872, and decided adversely to the views presented
in the argument by the counsel for defendant.
And the principle upon which that decision is
based affirmed in the case of the State VS.. Ra-
mos, Baldwin Relator, 10 A. X. 40. Ii is suppos
ed, however, that the case of the State vs. Mason
IA A. II. sos. favors the argument of defendants
counsel. 1 do not think so. 1t is true the court
therein said, speaking Of defendants at thus sp-
pears that they are not technically usurpers, but
have apparently the warrant of law for the tenure
of their offices y" but had they intended TO place
their decision On such ground, they would have
stopped there and ordered the dismissal of the
suit. Instead of this, they proceed, and very
deliberately too, to discuss the question of the in
terest necessary TO maintain action of this kind.
1t must be remarked here that the writ of quo
IrdTTdnt0 in the case OF the State VS.. Mason
was presented by parties who alleged no
other interest except that they were " citizens of
the United States that they reside in the town Of
CarTollton, municipal corporation created by
the Legislature of Louisiana, and wherein they
have a right to vote" They did not claim the
Office for themselves. but merely sought as citi.
zens to prevent the entrance into Office OF men who
had the regular certificates Of election. The point
of the decision in that case is expressed at the
bottom of page 507, as follows :" We can see no
good reason for differing from this view of the
Legislature. and are OF opinion that the first ex-
ception was well taken by defendants. and that
plaintiffs were not entitled TO the writ Of quo ,rdr-
rcntO In this case, because then do not pretend 10
be entitled to- the offices from tchich they lcish 10
Dust the defendants" In this case plaintiff al.
leges his title 10 the office of chief of police and
seeks TO Dust Cain, the defendant from that posi-.
ton. Ii is immaterial whether the office held by
defendant be that Of superintendent of the me
tropoliisn police, and that Diamond does not claim
that office. The plaintiff seeks the Office of chief
of police of the city, and the answer itself shows
the proprety of the remedy by quo lod'Tdnto. for
defendant claims that the Office sought by plaintiff
q 49,
pretended merger attempts to evade an inquiry.
The object of this suit il to show that this merger
has not been operated, and the argument of the
respondent is merely what is called arguing in q
circle.
The rext point to be examined is the alleged
uDconsttutionality of the act OF the Legislature,
No. /, entitled ian act creating Board of
Police COMMISSIONER and approved July Q, 1868.
The position taken in the argument by respon
dents counsel is that the'court cannot pass upon
the constitutionalty Of this law bees use IL does
e -. a.