The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-12-05
THE METROPOLITAN POLICE BILL.
Bill Unconstitutional by Decision Of
a District Judge Elected by the
Republican Party.
REASONS FOR JUDGMENT.

l FIFTH DIsThlCT OOIRT FOR HARISH OF ORLEANS.
o. j. Dunn, president, and other commissioners of
| the Board Of Metropolitan Police vs. John r. Con.
| way, mayor OF the city of New Orleans.-Same
| VS.. Robert E. Diamond.
These two cases present the same demands,
issues and pleadings, and therefore can be decided
together. They are writs of Injunction, directed
to the may or in the case, and to the chief of
police in the other, preventing and prohibiting
them from interfering in any manner with the ad-
| ministration OF the police affairs; petitioners
averring that by virtue of the laws now 10 force
1 TACT No. and act No. "a of the Legislature of
1861 the mayor of the city aud the chief of DO.
lice are Invested of all the authority they pre-
| viOusly possessed in such matters aud they pet
toneTs) are vested exclusively with these powers
rule is taken to dissolve these inj unctiOns
upon severaIgrounds, the most important of which
is the unconsttutonaliiy Of those two acts of tne
| Legislature. The defendants to the rule insist
| that the court cannot pass collstersly upon the
question OF constitu0nality. In the words of the
able and learned judge of the Sixth District Court
| In his opinion in the case of Diamond Va. Cain
81 must confess that the distinction attempted to
be made between collateral and direct issues as
applicable 10 the present case is too acute for my
comprehension-it is not sound. The plaintiffs
claim that by virtue of those two acts neither tae
mayor nor the chief Of police have any authority
TO act IN the matter Of the police, but that they
plaintiffs, have. On the other hand the mayor
and chief Of police aver that by section twenty
six, and also Of the city charter, they have full
and ample power to act In the premises and that
llOse laws invoked Dy the plAlnu1s are nun and
void on account of their violating several articles
of our CONSTITUTIONAL is then clear to the mind of
any man that there is no collateral ISSUE it is as
direct an Issue as can be made. You claim a sum
OF money. i say do not owe it the issue is
direct. You claim a certain power. / aver that
you have not the power. The issue is collateral
say counsel. I'll hear you upon the difference,
as the court of Westminster Hall would say, at
some future time.
The idea that a suit may be brought to have
suit declared unconstitutional is not without foun.
dalton, but it is equally certain and is an occur
renee of every day that the unconsttutionality of
a statute is peremptory defense to an action
growing out OF that statute, and. in fact common
sense teaches that. Who would think of bringing
q suit 10 have statute declared unconstitutional
simply for the purpose of having il SO declared?
Where is the judge that would listen to an argu-
ment simply TO that effect? Would not the court
tell the plaintiff In that case My good SIR where
Is your interest! Why do you want to see that
statute declared unconstitutional? Has anybody
tried TO put that statute in operation so as to effect
any OF your rights? If not it is perfectly inmate.
rial for you or the commonwealth TO know
whether that statute be constitutional or not so
long as 1t remains unexecuted. But, on the other
hand, attempt to execute an unconstitutional law,
and not only the private individuals against whom
you are trying to make II operate resist it, but
others, taking the lead. prevent you from even at.
tempting to put it in operation.
.Aeain. on The superstition that the court be in
error in holding that doctrine, the question would
NC ucunltcly sttutu Dy Lne article "a OF our Con.
stiiution, which says: The Supreme Court shall
have jurisdiction in all in which the consttu-
uonsllty or legality of any tax, toll or impost of
any Bind or nature whatsoever shall be in eontes.
tahon, whatever may be the amount thereof"
Now, how can the cOnstitutionaity or legality OF
any tax toll imrnst of esy kind nature
whatever be set up, except an answer TO a
suit, when 1t is attempted to exact that tax ETC.,
by legal process from the party owing il? viii
the party owing it bring suit to have that tax
declared unconstitutional or illegal, when no one
tries to collect the same? No.
The next point TO be examined by the court is,
are the acts Nos. AMI "a unconstitu ional!
There IS no doubt In the mind of the court that |
under article l59 of our Constitution act No. ia
Article $50 reads as follows:
ART. l59. The General Assembly, elected |
under the Constitution, shall hold its first session
in the city of New Orleans. on the third Monday |
after the official PRONUNCIATION aforesaid, and pro.
ceed Immediately upon its organization TO vote |
upon the adoption of the fourteenth amend. |
ment TO the Constitution of the United |
states, proposed by Congress, and passed |
six; said General Assembly shall not have poxe /
TO enact any laws relative to the per diem /
OF members, or any other subject after orgsniza-
uon, until said constitutional amendment shall /
have been acted upon"
The meaning Of the convention in adopting this
limitation upon the action of the first Legislature
TO be convened under the new Constitution is
plain enough. The original article, introduced by
u. NJ. Mlckllhe, proposed to compel the adoption
81 the constitutional amendment by prohibiting
all legislative action on other matters until its
adoption. (See journals of the convention pages |
I'll and 2l2) Mr.. NAPLES proposed an amend
nent, by which action only, without reference to
IL kind, was required and as amended the above |
article was adopted. (See journals of conven.
ion, 2l1 and 2lS.) 1t was evidently the object of
he convention TO force, by all proper means, the |
adoption of the fourteenth amendment.
By the journals of the House of Representatives
Qara tha l
lpon by the House on the LIST of july 1868, hay-
ng suspended the rules for that purpose. See
ourDals House of Representatives, page 8. The
anne resolution ratifying the constitutional
imendment was only finally acted upon by the
senate on the 9th of the same month but before
his, viz: on the I'd of July, the act No. L under
vas introduced in the House of Repre-
entatives and passed on its first reading. Jour
,al House OF Representatives, mage 10. And the
hiId and final reading of this bill occurred on the
tn of July. See Journal House of Representa-
ives. page IL Now itis plain that though on the |
d OF July the House of Representatives
ad acted on the l4th amendment. the
enate had not. The action required BY
rticle l59 of the Constitution is that of the
General Assembly," and according TO sr,i
lie 10 OF the Constitution the General Assembly,
onsists of two distinct branches, the " House"
nd the Senate" 1t is rule which Is invari. |
uned 70 ssss fged ne conans a, wees
airy TO invest it with legislative authority; but
hls presumption Is completely rebutted when its |
wn journals, besides proving the passage Of a |
NV. also establish the nonfufment OF the only |
ondition upon the performance Of which il had |
be power 10 enact the law. The act of the 9th |
{ July, lS6S, entitled can act creating Board
4 Police Commissioners" having been passed in
iolauon OF the l59th article OF the Consultation,
}, therefore, null and void, and no repeal of the
9th section of the city charter under the act of
$50, was Effected thereby.
Again, in default Of proof to the contrary, |
Thich proof does not appear on the journals of
be House. and should appear, il the conclusion of
bis court be erroneous, it is presumable that the
ticial journal of the State of Louisiana and the |
Tchlves IN the Office of the secretary of State |
Eould not have numbered and published the sct |
resting Board of Police Commissioners as No.
and the joint resolution rsiifyng the constitu
lonal amendment as No. 2. unless the act Great
lg the Board OF Police Commissioners and known |
8 No. had been passed previous to the
cuon OF the General Assembly upon the |
Constitutional amendment. Therefore, again, |
that act No. l unconstitutional. The next |
oint TO be considered s is the act No. "a entitled
an act 10 establish metropolitan police district
nd to provide for the government thereof con-
ttutional! 10 the words of the able Judge pre-
idng over the Sixth District Court for the parish
I Orleans, " II may be immateral for the purpose
4 the issues presented in this case, to decide
Tletler the NJ rafa n |