New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1868-11-18
THE POLICE INJUNCTION CASE.
p. E. DIAMOND vs.. SUPERINTENDENT CAIN.
Argument of Counsel before Judge Cooley

argument in the Second District Court at
five o'clock last evening. The chief fea-
lures of this case are well known to the
public. Mr. Cain, by virtue Of an appoint
ment of the Board of Metropolitan Police,
holds the Office of Superintendent of Police.
into which has been merged the duties OF
Chief Of Police, abolished by law. Mayor
Conway, however, issued to Robert E. Dia-
mond a commission as Chiefof Police, thus
disregarding the new police law, and his ap-
pointee applies to the court for installation.
We copy report OF the case from the
Times:
For plaintiff, r. N Ogden and Alfred
Phillips.
For defendent, E Fileul and J. Hawkins.
Mr.. H. j. Leovy said that additional
court counsel had been employed in
the case, which met with the assent of the
court.
Mr.. Phillips, on the part of Robert Z.
Diamond, read the petition praying Tor "a
writ of quo warranto and writ Of injunc-
ton to issue.
Two rules uisi-one to show cause why
an Injunction should not be made perpet-
ual, another by what right he held the
office of Chief were read.
The supplemental petition of Diamond
was then read, upon which Is based the real
issue of the case, and answer Of Cain de-
nying everything in general and particular.
The reading Of these petitions and an
swers having been accomplished, the com
mission of Robert E. Diamond from the
Mayor, and the information from the coun-
sci of Cain that his commission would be
forthcoming at tue proper time, were re-
ceived in evidence. The fling in evidence
having been concluded, the argument for
the plaintiff, Robert +. Diamond, was
opened by K. N. Ogden, Esq, who
confined his argument to the uncoDstitu-
tionallty of the police bill. Alter congrat-
ulating the people upon the peace and Or
der which now reigned, he went on to say
that it was difficult to find i'll all the records
of class legislation law more netalieus in
its designs than the present. The law bore
in itself the poison which would wreak its
own destruction. Admitting that the bill
was constitutional in any Of is features,
the provision of the law by which the
Chief of Police ives made subordinate to
the Superintendent would be sufficient to
destroy the law, as there is no mention of
the city charter being repealed, and a char
ter can not be repealed by implication,
BY the decisions of the supreme Court the
charter special law-mIst be repealed
by a special law. The office of Chief ex-
istng under the charter and which has eX-
listed for a number of years, remains still
an office under the charter, which is
still law, and the nomination of Dia-
mond to fill the office was made
uader the charter, and all the behests
OF that law We're fulfilled. Gaia must be
either a State or municipal officer: If a
State officer, it does not necessarily con-
Hict with the functions of the municipal
office; il a municipal officer he is usuTp-
er, as the only means to fill the office OF
Chief is by appointment OF the Mayor.
Another point in the uncOns itUtionality of
the bill is, that it leVies a special tax; and
"all bills for raising revenue must originate
in the House Of representatives. when
the truth is, this law originated in the Sen
ate. He cited the point again, that, ad
mi,ting the bill TO be constitutional in all
its provisions, it is unconstitutional in those
provisions wherein it apple to the city OF
New Orleans.
E. Fileul, one of the counsel for the de-
fendant, proceeded to set forth why the
plaintiff has no right to the writ of qwo
lr1rranto, and his position was to show
cause why the writ OF quo 1carranio should
not issue. Defining the writ as it was laid
down in the Code OF Practice, he said that
the office OF Chief had been merged into
tre office OF Superintendent by authority of
the Legislature. According TO act No. 153
the petition or prayer OF the pliintiff was
informal, as the prayer should have been
introduced by the Attorney General, not
by private parties. The Injunction, accord
ing TO articles 30S and 304 OF The Code of
Practice, eau not be granted. There is no
principle better settled than that the later
laws repealed the former laws with which
thev were ia conflict From this principle
as announced he deduced the fact that the
Metropo,itan Police law repealed the laws
with whlch it was in conflict Besides mu-
nicipal corporations were, according to the
we'll understood pri lcipe in practice within
the States, the creatures of the Legislature
and The objects even OF their practice.
Quoting the case OF Joshua Baldwin, he
cired its opinion. In the Constitution of
1865, there was not single protective
clause regarding the powers of the corpo-
ration OF the city OF New Orleans. These
principles were well undersl ood.
The Judge: Do l understand that the
proposition is denied by the opposition
Mr. Ogden: By no means.
Mr.. FiIeul proceeded 10 quote act No. l
in answer to the principle OF the counsel
for the plaintiff that laws are not repealed
by implication, because this law, forbid
ding the Mayor to appoint any more po-
liceman, was repealed by the Metropolitan
Police law. According to the theory of
the plaintiff, the special law was not re-
pealed.
Mr.. Phillips; That act (No. l.) as it
passed before the ratif alton ofthe amend
ment, is unconstitutional.
Mr.. Fileul: Well see about that.
All the evidence required of the defend
ant, to show that he is no usurper, is to file
his commission. and this the defendant has
done. (Here Mr. FiIpul asked a great
many questions and answered them him
selt) If the Board OF Police gave Cain his
commission, it is against the Board, not
with the subordinate. The first ar;i lie of
the Code of Practice, that an action is the
right given TO any par y to ask what is due
to him, the plaintiff could not seek what
was due TO him through the unconstitution-
ahty of the law. The plaintiff must have
some of his rights invaded. Did Cain in
wade any of The rights of the plaintiff? He
quoted the act No, 1888 again laying stress
upon the provision by which the Attorney
General OF the parish OF Orleans is to bring
suit U,d quo l0lrrdntO.
Judge Cooley: 1t is my impression the
act was subsequently amended so as to per
nit any ore interested to bring the action
Of quo lodrrdntO.