New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-05-13
NEW ORLEANS, FRIDAY. MAY Is, 1871
THE COUKTs.
United states Circuit Court.

Pluukett & Co. vs.. John Gauche.-In this
case defendant ordered of plaintiff at Pitts
burg, six hundred dozen glass c9lmneys,
number O, one thousand dozen number one,
| one hundred dozen number two, and twenty
| dozen number three. Plaintiff shipped the
| six hundred dozen and dozen more OF the
number o, also a email excess OF NUMBER
| two and three. The goods were lost ID
| transit. Defendant set up that the loss must
fall upon plaintiff. because the shipment dlo
not conform exactly to the order, ana thaV
he had no right to refuse the whole cons'gn-
| ment: that the vendor did not comply with
his contract, by the delivery OF more or
| less than was contracted for. Under the
authority of Benjamin on sales and the cases
cited and reviewed, Judge Woods, concur
ring with Judge Durell, maintained the de-
| fense. ,
II the shipment had conformed exactly to
the order, the sale would have been perfect
! and the loss would have fallen upon de-
fendants but the shipment of an excess
| involved a new contract, which ieft the
goods 1T the will ot the vendor.
| The ship Island Canal Company and the
urainsge Commissioners-Ju udge Dib-
bIe's Decision.
State of Louisiana eX rel. John LOCKWOOD
VS.. N E. Bailey and Moses Eastman-ln this
case Judge D.bele, OF the Eighth District
| Court, has rendered q decision substantially
| as follows:
| IhlS IS an HDpliCdtiOu IoI
| The relator seeks to compel respondents,
| who are Presidents respectively OF the Board
! OF Drainage Commissioners OF the First ana
Second Drainage Districts, created by an act
| approved March Is, 1858, to turn over the
| effects and paraphernalia OF SAID dra'ning
commissions to the New Orleans and snip
| Island Canal Company, whereof reiator IS
acting President. The petition AYERS that
by virtue of act No. 4, of the special session
OF 1870, approved March 16, 1870. the
three Boards of Commissioners OF lDraln-
age, created by the said law OF 1898,
are abolished, and it is mace the duty OF
said commissioners to transfer to said Canal
Company the effects as aforesaid; that the
commissioners of the Third District have
complied with the law, but that the COM
mis.ioner5 of the First and Second refuse:
The reator further shows that said Canal
Company is required by the said law OF
March l6, 1870, to give bond Ia the sum OF
s.venty-tive thousand dollars; that the bond
has been furnished, but still the commits.
| sinucrs refuse to turn over.
/ In answer the respondents aver: l. That
no cause of action is disclosed IN the petl.
ton Of relato~to warrant q proceeding OF
mandamus. 2. That there is no SUCH an
Z orsanization as the New Orleans and Ship
! Island Canal Company; the pretended cor
! pOration being mere myth, gotten up LOT
!. fraudulent and illegal purposes. ). mat
the act of the Legislature under and by VIZ
tue Of which the relator proceeds Is uncon-
stitutional null and void, in that 1T I'M
. pairs the obligation OF contracts ana I'd al
iempts to divest vested rights, to wit: The
legal rights of these respondents as trustees
u of the funds. property, ETC., sought to oe
# taken from them; and the vested rights OF
J. the properly owners to whom said properly,
, | funds, etc, belong. having been conlrlpu'eo
. by them under an assessment OF their pro-
perty for the purpose OF improving the
| ooaorJinu n y HraipaUP SvStHIl aQODl-
@ ed before said assessments were made ol
e ! collected"
n ton and approval of the bond referred to,
n and the refusal of the respondents to COM
e DIV with the demand to turn over
: i. If the relator has any legal remedy he
g Is entitled to the writ of mandamus. Tht
q writ will always lie to compel al officer tt
It fulfil any duty attached to his place. which
If may be required of him by law, aud abou
/. which he has no discretion. G. p, Art. s2'
: to S34. In this matter the Drainage Com
e missioners are expressly required to per
h form certain act, which act they haV'
v refused to perform. 1t would be Difficult
% to find case coming more fully within I'M
r law governing the Issuance OF the orde
e sought. ;,
& This whole subject was thoroughly dis
Of cussed in the case of the State ex rel.
is Bloomfield VS.. these commissioners oefo1'
r, the Seventh District Court. The learaet
,r Judge of that tribunal gave an elaborate
opinion, which l have followed on thu
ID question. l annex hereto, aud make par
ID hereof, those portions of said opinion bear
IS ing upon these constitutional Quesuons.
at do this the more willingly because ther
n the questions were argued at length, her
IS they were not.
le legal stand point. l have been bound D.
20 nv judicial Office to presume the act OF tht
a. Legislature, under which the reiator seek
I'd relief, as proper in every respect.
a. / am under oath to enforce whateve
le rights arise under the law, unless find
De conflicts with the constitution Of the com
N monwealth, or of the nation. do not dis
i'll cover such conflict, and have, therefore
g. no option but to enforce the prayer OF Tn
I'd complainant.
st But we are told that the Ship Island Cana
st Company is huge swindle: that the form
of a CORPORATION is assumed, and certain OF
jects pretended, in order to cloak ufterlo
purposes of fraud and corruption. Of this
as a Judge, l have no opinion, because
have no data. 1t may be true, 1t ma
er not. If it be so, there is certalni
of some remedy by proceeding against tn
o' individuals who are charged with WRONG
al doing, or directly against the corporation
", to the end OF its legal destruction. But
al events the way is not by inducing
Judge TO place judicial authority in the wa
he of the execution OF a law soiemniy enacte
he and promulgated, upon assumption that
~ ~, is NOS wise act. However great may b
oe the wrong apprehended of the Ship Islam
y Canal Company, a train of far greater ev
Mt must inevitably follow the act Of one i
is judicial authority, who steps aside from h
sphere to question or interrupt the acts
the other branches of government. Whe
nd ! the Judiciary is wrong the sheet-ancnor
+o civilization is dragging.
W With these considerations, l concluC
II. that the return of the respondents is NJ
OF sufficient.
1t is, therefore, ordered that the mand
mus be made peremptory, as prayed 10
aud respondents pay cost.
The Planters Banner reports the sale
the fine Chatsworth estate of Colonel J.