New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-12-13

| ms ne denied, and referred to the second
clause of the second section of the third ar
teIe on the constitution, which provides
that the appellate jurisdiction of the Su-
preme Court shall be exercised with such
exceptions and uRder such regulations as
Congress shall prescribe, and he claimed
that the court had no control whatever
over subordinate tribunals, and only APP
peilate jurisdiction in regard to particular
causes which have been conferred by the
several acts of Congress; that by the judi
cIary act of 1899 the appellate power of
the Supreme Court in regard to suits in
| equity in the Circuit Court was confined to
| the power to review final DEGREES. That
4 this court had no authority to entertain an
! appeal from an interlocutory order or de-
cree Nf court below whether the court be-
low vas proceeding within or without its
| jurisdiction, and that the writ of prohibit
lion couIu only leshe in the cases provided
| for by the statute-thav ia, to Judges of the
| district court sitting in a0miralty. and to
| the other courts when necessary to exer-
| else appellate jurisdiction vested in this
! court by an appeal or writ Of error based
| on some final Judgment or final decree or
| the Circuit or District Court.
| The petition in this case shows pending
cause in the court below which has not
reached a final decree, and may never reach
| such decree. There is, therefore, to-day no
| appellate power in this court in regard to
| that cause, and never will be unless that
! cause shall reach final decree in the court
| below. Mr.. Phillips has remarked that the
construction here commended for would
make the statute inconsistent in this, that
it authorizes a writ of prohibition in adj
miralty causes, which had been disputed
for many years in England prior to the
| adoption of our constitution, and denies the
right to issue the writ in all those causes,
where it had always been issued by the
Kings Bench. ! understand the explana-
ton of this to be that while the decision of
| ordinary causes between man and man,
/ within our jurisdiction, can very rarely
| decrttha rights of foreign nations a single
| tv might embTGIt Judge sitting in admiral
| Britain or any other commemorative Great
/ 1t is to be remarked that the statute wv
| not give this court the right to issue the
writ of prohibition to circuit courts even
in admiralty causes, but only to district
Judges, the lowest in the list OF judicial Off
GERS of the United States. 1t was tOreseen
that district Judge sitting in some remote
| part of the country might embroil US IN war
before the cause, in the ordinary course OF
| proceedings, could be reviewed by this
| court Therefore this court was empOw-
cred to arrest such proceedings by writ OF
prohibition, and the express provision au-
fboriZing this writ in this singl case must
| be held to exclude it in all other cases.
Mr.. Phillips claims that the court be-
low has usurped authority in entertain
ing the suit there pending. The con
trary of this clearly appears The III
teenth article of amendment declares
that no State shall deprive citizen OF the
United States OF the right to vote on the
ground Of race, color or previous condition
of servitude, and provides that Congress
may by appropriate legislation enforce the
provisions of this amendment. The right
to vote means more than the right to put a
ballot in hat or box. 1t means that the
vote, when properly cast, shall be counted
and returned and be made ttticaclous to
secure the office to the person having the
greatest number OF ballots. 1t is not
: enough that the voter is permitted to cast
his vote while some State officer is per
l mitted to disregard it IT the canvass OF
, votes. This provision, like every other IN
} the constitution, was designed to secure
practical results and to secure to the voter
, not only the right to cast his ballot unm0
: | Tested but to have the ballot when cast
} effectual for the purpose of determining
/ who shall hold the office, and 1t is proYldeC
9 that Congress may by appropriate ieglsia
/, ton secure this practical result In eXecu
. ton of this constitutional power Congress
/ | has provided that no person shall be Gle
g prived Of the office to which he would have
heen elected if such voters had been per
q mitted to vote, and that the person Wh
t would thus have been elected may MAINTAIN
an appropriate act in a circuit court to oh
5 tam the Ottr e.
d This statute is clearly within the consti
e tutional power of Congress to enact. 1t l
9 a fair question for Judicial examination
: what the appropriate action IN such cas-
It may he whether the party who would haV
t been elected should wait until his opponen
Q was installed in office and then bring qu
IS warranto to GUST him, or whether h
e NAV bring a suit in equity for an lnjunctio
| to restrain the declaration OF an election 1
" violation of the votes cast and uhered to
t cast Whichever of these remedies Nigh
be adopted III a particular case, 1t is man
= fest it might be objected that the other wa
r was more appropriate, and only the court
II can determine the question. Kellogg claim
e that had the votes which were properly o
IT fered been received and counted. he wOu
II have been elected, and he brings suit !
n equity III the Circuit Court to restrain sue
g. canvass, and his suit is progressing III tn
1t court below hut has not reached Yet tlnt
Is decree. 1t is, therefore, ImpOs6iDl
y to maintain that the court below he
l. Usurped any authority. A case is properl
1t before it in which it may properly dete
rs mine the question in dispute between tn
al parties and this court can not interfere III
10 til after the final decree shall be rendered
10 Whether an appeal may be taken from sue
IN case subsequent to the decree Is lmmateT
to consider here. There is certainly gre:
j, doubt as to such right of appeal. But co
3, cedipg it to exist does not help this apple
Re ton at this time, because no appeal has
n fact been taken from the case, and nor
re can be at the present time.
re ARGUMENT OF MIR. OGDEN.
t, Mr.. II. n Ogden, Of Louisiana, close
Ii. the argument. He said that he Won
I'd not undertake to argue the case full
u, Mr. Phillips had so completely eHhau'
~ ed the argument as to the right
to the court to Issue the writ that he co
ut sidered it useless to say anything upon tn
point He reviewed the bill in equity tilt
lit with his application, and showed that t
O. action of the lower court was ann
ct directly at the State government. He thu
is took up the question of usurpatiOu, and,
on reply to Mr.. Cushing. said that he HI
OF been alarmed by expressions which hi
If fallen from that distinguished gentiema
and that he thought the whole conntr
ne from Maine to the gulf, would be alarm
be bv these expressions if they bad aoO
to them the evidences of elaboration.
he surely was startling to hear a gentleman
n. his national and international reputatl
OF declare in the Supreme Court Of this eOu
on try that he could see no usurpatiOn up
ID the face of the papers filed III this cause
OF it be true that so distinguished gentlem
re can see no usurpati0n in this deliberate
as, tack upon the rights of State, then
Or deed there was cause to fear that the lou
les GatiOns Of our American system had he
ct, DESTROYED. and the dearest rights OF
re: people silently stolen from them. He So
he that the only hope for his State was in
ig- action of the court that If it could afford
9r. remedy, then it was apparent that def
Id- of the most fatal character existed IN Q
ch political system. He predicted that
he Louisiana was stricken from the tag as