New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-04-14

THE COUNTS.
Supreme Court.

| Supreme Court.
| The article Q32) in the constitution
| requiring division Of lands to be sold into
small tracts, is decided by the court not to
| be selfacting, and to be in such shape that
| a legislative act was necessary to operate II.
s. r. Bowie VS.. H. Il. LOtt-Appealed
from the Parish Court OF Carroll.-The sue.
cession of Mrs. Nancy Bowie was opened
| in the parish court of Carroll III 1867. In
| August, 1869. the property belonging there.
| to was ordered to be sold to pay debts, and
was purchased by H. r. Lott, who sued
out monition for the purpose of curing
| irregularities. and to this an opposition was
universal heir of the deceased. There was
judgment in favor of the purchaser, and
the opponent has appealed.
By Associate Justice Howe, organ of the
COurt-There are several points made by
appellant which do not appear to have any
especial force. The purchase was made in
good faith, presumably, and the court had
jurisdiction to order the sale. The pur-
chaser is therefore protected by the decree
against irregularities and infOrmalities, II
any there were, prior to the decree. We do
not perceive any irregularities subsequent
to the order Of sale; unless they are to be
found in the fact that the lands were not
even divided for purposes OF sale into tracts
of from ten to fifty acres, in accordance
with the provisions Of the constitution OF
1868. The opponent makes this point also,
and we are required to pass upon it.
The constitutional provision IN question
reads as follows: Article 1872 All lands
sold in pursuance OF decree OF court shall
he divided into tracts OF from ten to fifty
acres
By act No. 10, approved February "a,
1869. provision is made for carrying into
effect this article, so far only as contracts
made and SUGGESTIONS opened after the date
OF the adoption Of the constitution OF 1861
are concerned The theory of the Legisla-
ture seems to have been that the cOnstltu-
tional provision was not intended to be self
acting, that it required a statute to supply
the necessary machinery for its practical
operation, and that it would not be just to
supply this machinery except so far as con
tracts made and SUGGESTIONS opened after
the adoption OF the constitution were con-
cerned.
There is much 70 lead US to suppose this
article was not intended to be self-acting.
1t appears at first glance that it is not pro-
hbilOry in its terms. and is not, therefore,
within that class which for their execution
require only that the citizen, whether in
his official or individual capacity, should
refrain from disobedience of these prOvi
stems (State on relation of Solomon against
Graham, % AM
Again, there is no penalty or nullity an
nounced in the article, and it might be mat
ter Of serious discussion whether, in the
absence of any sanction, it was intended by
the trainers of the constitution that the ar
ticle itself should, prOfria rigore, invalidate
any sale Of lands made after its adoption,
which should not accord with its require
ments, although the Legislature should not
have provided any practical means for car
rying out the design of the article. This
suggests, finally, another reason, which is,
perhaps, still more cogent: namely-that
the article in question furnishes no mOdus
Oper0Ndi by which the sales are to be made,
but rather containsa general direction ad-
dressed to the legislative department, an
nOuncing new policy in regard to the di-
vision of land. and leaving to the Legisla-
ture the task of carrying the idea into prac
teal execution. How is the land to be di-
vided Who is to make the division How
are the possibly large expenses of accurate
surveys to be paid! What was apparently
to be done under the apparently numerous
orders OF sale requiring to be executed be-
tween the date OF the adoption of the con-
stitution and the date when the Legislature,
acting with the utmost diligence. might de-
wise the necessary machinery! Upon these
important points the article is silent. aid
prior to the act of 1869 the statute book was
silent also.
We must conclude that the article in
question was not selt-acting in the manner
claimed by opponent, that it could be car
ried into practical operation only by stat
ute, and that therefore, it had. in this case,
no effect, because the succession was
opened prior to the constitution of 1865, and
q sale OF its lands was not only unprovided
by the statute, but expresslHexcluded from
its operation. Whether the Legislature did
its full duty in providing for a sale Of GER
tain property. and excluding another class.
is matter for the conscience of the legis-
lstor. II is enough for the courts to see
that the article is not selfacting, and
can, therefore, take effect only to the ex
tent proviyed for by the statute. Judgment
affirmed
United States Circuit Court.
In the case of Thomas H. Murphy against
Holmes and others, it is ordered plaintiff be
allowed to withdraw the original patents
fled.
A jury list of 100 names is to be drawn
for the April term of 1872.
Eighth District Court.
In the case Of j. O. Nixon VS.. Solomon &
Simpson ct al. praying for nullity of the
Judgment Of this count, declaring act No. |
81 Of the Legislature of 1871 to he uncon-
stitutional, the State has filed an answer |
and exception. claiming that Nixon can !
have no interest in the suit. having trans |
ferred his rights in the matter to solomon |
Il Simpson, and, furthermore, that the |
Judgment is res 0djudicut0, prays that the |
suit may be dismissed.
The suit OF BOvee VS.. Heron, involving
The right 10 the office Of Secretary Of State,
las come up before this court in new
chase. Bovee claims that the Legislature
having failed to take action on his suspen-
ZION from the office by the Governor, he is
estored TO all his rights and privileges.