New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-11-24

Mr.. Sauvinet Declared Elected
Thomas L. Maxwell vs. C. S. Sauvinct-
In this case Judge Dibble, Of the Eighth
District Court, yesterday delivered the fol-
lowing opinion:
Plaintiff contests the election OF defend
ant to the Office of Sheriff Of the parish Of
Orleans for the civil courts. Since filing his
petition, wherein the grounds of contesta-
ton are set forth at length, plaintiff has pre-
sented a supplemental petition praying for
an Injunction against the defendant. A
rule nj 81 has keen heard, and it remains for
the court to determine whether the writ
should issue.
Plaintiff recitcs his unavailing attempt, in
another suit, 10 prevent the returning Off
GERS of the election from declaring his Op-
ponet elected; AYERS that defendant has
been, or soon will be, declared so en-
titled to the Office, and will OBJ
therefor. He alleges that he has been legal
ly elected to said office, and is legally enfi-
tied to the some for the reasons set forth in
his original petition; but that the said de-
fendant will nevertheless seek to obtain
possession by ousting petitioner, who Is now
the incumbent.
In deciding this motion tho court will take
judicial cognizance OF the fact that the re-
turning officers OF the election have officially
proclaimed that c. s. Sauvinet, the defend
ant, has been elected Sheriff by o majority
over T. L. Maxwell, plaintiff, of six thou
sand one hundred and fifty votes.
Section tifty-four OF the act to regulate
elections, etc, approved March l6, 1870,
makes provision for eanvassing the returns,
directs the returning officers to make proc
lamation of the results,> and declares that
kl 90 - n1n th,vc Ia
and promulgated shall be prima 7dcie evil
dencc III all courts of justice and before all
civil officers, until set aside, after contest
according to law, of the right of any per-
son named therein to bold and exercise the
Office to which he shall by such return be
declared elected" The Governor is re-
quired to issue commissions to all officers
thus declared elected, within thirty days of
such declaration.
In insisting upon his right to an injunc-
ton t. prevent the defendant from taking
possession of the Office, the plaintiff lays
stress upon the fact that he is now holding
and discharging the duties of the office of
Sheriff. He admits that if he were not SO
in the office, he would not be entitled to
have possession pending the contest from
the mere fact that he made such contest.
But he claims thar because he is now hold
ing the place. therefore he must be pre-
euIlcO ~ uC yOobSSciOA'
The reply Of defendant is sufficient. Pos
session must correspond to title. The plain
tiff was chosen Sheriff for two years; that
time has expired, andihe has now no title to
the office arising from that tenure. As a
claimant by virtue Of a new election, he has
10 other rights than those derived from
such election. He must stand or fall as any
other candidate.
The language Of the statute above cited
<o< ho -h, hos hoor, 6Ao1a rad
elected by the returning officers, but whose
election is contested, a p,ima facte right to
hold and exercise the Office pending the
contest. The return is to be the priMa t0cie
evidence Of such right This term '.prin,a
faeie evidence" has definite meaning in
law. 1t refers to those disputable presump-
tiOns Of law which may be overcome by op
posing proof. Plma tacie evidence, how
over, establishes presumption of right, and
throws the burthen of proof upon the per
son who attacks that right. This is ele-
mentary. Greenleaf, vol. l, 80.
The rule thus declared in the law
is cOnsOnant with reason and the
established ideas of good government. Off
GERS must be presumed to have done their
duty; they must be presumed to have ex-
pressed and enacted the will Of the people
whom. whom they h in ,hw their s.1 official tha
such official acts when the citizen is effected
in his constitutional and just rights, will
only interfere and set aside the dOings of
executive officers after careful investiga-
ton. and in the manner and form prescribed
in the law Of procedure.
Plaintiff avers in his petition that he was
legally elected to the office in question; upon
this avermcnt, enlarged by special allega-
tiOns, he asks for the injunction as afOre-
,fo6y
plicatiOn in order that the defendant might
be heard. On trial Of the rule the technical
point was made that for the purposes Of the
argument the statements OF the petition
must be taken as true; that is to say, that
the defendant is not permitted then and
there tn disprove such averments, and the
single question presented to the court is
whether upon the allegations of the petition
the law will warrant the issuance of the writ.
The counsel for plaintiff made the best of
this point. Coneeding that defendant now
to hold and exercise the Office, they
argued that he had destroyed that prima
ydcic evidence by admitting, for the
purposes Of this rule, that the
charges made in the petition are true.
These sworn allegations they denominated
proof Of the illegality Of defendants cleo
tion and of the legal right of plaintiff to the
otfice--a right which they insist the court
is justly bound to protect by injunction.
The error III this ingenious process Of
logic arises from mistaking one thing for
another. Two such mistakes occur here.
First, because the respondent to a rule is
not permitted TO deny a statement he can
not be said to have admitted it; the allega-
tiOn only remains an er parte averment.
Second, such er parte allegations are not
proof, and can not ovelcome presumptions
of law.
But look at the law with a desire to
understand the intention of the trainers
and this cobweb Of technicalities disappears.
The object of the statute was to have the
person who has been declared elected in
stalled at once, in accordance with the GUS
tom all the world over, leaving the courts to
determine such contests az might be made
This is logical, because the acts of numerous
sworn officers create such presumptions AS
ought not to be overcome by the charges,of
an interested contestant.
The defendant is entitled to hold and
exercise the office Of Sheriff afore-
said until the pyima facie evidence of
his right thereto, established by the de-
cision OF the returning officer and his COM
shall have been overcome by proof
i'll this case, and Judgment has been rem
dered accordingly. / therefore conclude
that the plaintiff is not entitled to have the
writ OF injunction prayed for, and it is
ordered accordingly.
After the rendition Of the opinion,
General Harry T. Hays, Of counsel for MIR.
moved for suspensive appeal
which was refused, ON tho ground that no
appeal lies from IN interlocutory order.
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