New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-04-30
CONSTITUTIONAL OF THE
EIGHTH DISTRICT COURT.
It's Authority Maintained
THE OPINION OF JUDGE DIBBLE


Judge Dibble yesterday rendered an opin- |
ion on questions relative to the constltu-
tiopality of the act of the Legislature OF
March 16, 1870, establishing the Eighth Dis
trct Court.
The question at issue arose from a motion
to retransfer to the Eighth District Court
the case of Michel Lazard VS.. Mayor of New
Orleans, which had originally been brought
in that court and WAS transferred 10 the
Eighth District Court when it was first es-
tablished. The Judge held SUBSTANTIALLY do
follows:
It is not competent for parties htlgant TO
inuuire, in this collateral manner, INTO the
right OF the Judge to sit. He is de Jdclo
officer, holding g commission from the GoV-
ernor of the State, which commission mas
been recorded upon the minutes OF the court.
The validity of this commission, and the
right of its holder to the office, can only be
tried upon the contest of some other person
claiming the Office, or upon proceedings
taken by the State through its law officer Tor
Intrusion in office. This rule has been ire
ouently announced by the highest courts IN
| the land.
| 1t is not an unjust rule, for it injuries no
| one. Parties litigant have no interest IN
| inuuirlng into the validity of the appoint
| ment Of the Judge. II he has color of title
| to the office, he is an officer de Jdct0, and
his acts can not be questioned, though IT De
| subsequently, adjudged that he is not all 9TH
Ger de lure and be be ousted ii ON the once.
| The rule is founded in public policy and is
without exception. 1t would be manifestiy
| improper for Judge to pass judicially upon
his title to an office.
1t would be thrilling for judge to per-
| NIT litigants to question his right to preside
in the court into which they may come or
may be brought. In the case OF Lyon vs..
the State Bank, First Stewards Reports, 442.
the Supreme Court of Alabama said: III
the right be admitted, the courts are suo-
iected to frequent annoy OF the most
iisagreeabe kind, and their authority
weakened and abused by frivolous or lmagl-
| nary objections to the person OF the Judge
have, therefore, thought it proper to or
> der that all that part of the motion which
: gaes to question my right to the ONCE O
-, judge of this court be stricken from the
, record.
But though am thus constrained to de-
cline to pass upon the constitutiOnalty o
the appointment of the judge under thu
statute organizing the court, may, With
| out Improperly, remark that L Do not De
lieve that the provision in question Violate
, | the constitution in any respect. Inc powe
4 | Of the Legislature to establish an adaltlona
y specifically granted in article eighty-three
. | The statute established such court. Tn
J ! moment the law went into effect the ottlc
u | was in existence and WAS without an lhcuIf
| bent Webster defines a vacancy, IN TIL
sense, to be an Office destitute OF an lncum
It bent. This office was vacant. The LAY
/. nroyides that an election to the office sha
be held uniformly with the election for otht
district Judges. Until that time, the othc
would remain vacant unless filled by al
pointment. But the constitution vest
the Governor with the power to Il
It vacancies: the provisions of the statuI
simply direct him to perform this ,dut,
: This, however, is a mat er o. no COZ
O Germ to the parties to this suit, or 10 me
\ judge.
K Dibble says:
Iuow come to consider the third obieC
:. | ton made by the plaintiff to the ira lsfer
~ this suit from the Fifth District Court 10 u
e Eighth. He says: .'rhe sixth section OF ii
t. | act creating the Eighth District Court CO.
At fers the same powers upon the Fifth Distrl
:: Court granted to this court, and the plain
II if. having chosen his forum, can not
st compelled, contradictory or otherwise,
change tie same, as is attempted 10 be dol
=. by this illegal transfer"
The sixth section of the act reads as Il
Ia lows: That the Fourth, Fifth, Sixth al
lie Seventh District Courts for the parish
h Orleans, shall have exclusive jurisdlctlt
~ in all civil cases, except probate, and SUI
u civil jurisdiction as has been hereinbeto
We conferred upon the Eighth District Cou
tn where the sum in contest is above ore hu
or dred dollars. The Eighth District Cou
shall have, in addition to the powers herel
W before conferred upon 1t, the same genel
e, jurisdiction as is hereinbefore CONFER
re upOu the Fourth Fifth, Sixth and Seven
|
nv NV attention has been called TO t
re opinion of the learned Judge Of the Six
he District Court. in the case OF L. NJ. Frost
or the Southern Bank ct ais, wherein the SAL
view is taken as that assumed by the plant
After comparing this section with the pl
ceding sections, the Judge concludes that
= Sixth District Court has the same power
lR that granted to the Eighth. He says: II
+ not an answer to say that such was not
/ | answer of the Legislature"
1 II With all respect, | am constrained TO TIL
| 2 that the Interpretation so insisted upon
4 | plaintiff, violates in every respect, not OF
1 n the spirit of the statute. but its very lett
i o But.Jefore proceeding 10 examine the s
l. ton in question with relation to the OIL
parts of the law, let US recall some OF
fundamental rules for the interpre .atlon
. legislative acts.
6 The sole object of Interpretation is
discover the intention of the Trainer
,aI Smith on Constitutional Construction, 62o
"The most universal and effectual way
discovering the true meaning OF a law WI
its expressions are dubious, is by consid
IS" ing the reason and the spirit OF i, or
cir cause which induced the Legislature
enact it, G. c., art. Is.
e- A construction which would render
&C. portant expressions of the law useless I
nix not be adopted. IA A. 419.
So conclude that exclusive ,jurisdict
over all possible matters having been CO
eS- ferred upon the seven courts named IN a
asst Gle eighty three, the power of the Legi
IVA ture to modify and change such jurisdict
'!' must be conceded, or the authority to est
ISL lish additional courts annulled and rende
to meaningless.
,ur have thus considered the several obj
-. tons made by plaintiff to the validity OF
GO law requiring the transfer Of this suit II
re- the Fifth to the Eighth District Court. II