New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-01-25
THE INJUNCTION AGAINST THE CAR.
TER LEGISLATURE.
Judge Dibble Refuses to Grant 1t.

vs. George w. Carter and others, in which
it was sought to restrain the Carter faction
from assembling as Legislature, except at
the State House, by refusing the prayer for
injunction.
The opinion in the case we give in extenso
as follows:
The Governor Of the State brings this
action in the name OF the State The peti-
ton sets forth
That there is in this city an unlawful as
semblase Of persons cOnspiring to over
throw the legitimate authority of the State,
under the pretext of being, and as such
hindering, the rightful power of the House
of Representatives Of the State Of LOuisi-
ana; that said unlawful assemblage, under
the leadership of George w. Carter, who
processes to be and to exercise the power
and authority of Speaker of the House of
Representatives of the State of Louisiana,
holds its meetings at a coffeehouse in this
city, on Royal street, between Canal and
CustOmhouse streets, known as the ''Gem
saloon" and that said assemblage Of per-
sons, under the leadership of said George
w. Carter, pretending to exercise the pow
ers and authority of the House Of Repre-
sentatives of the State Of Louisiana, have
appointed one William S. Mudgett as the
Sergeant-at-Arms of said assemblage, pre-
tending to be the House of Representatives,
and said William 5. Mudgett, and numer-
GUS assistants of said Mudgett, under the
pretense of being the legitimate officers of
the House of Representatives of the State
of Louisiana, go about and arrest the mem
bers of the General Assembly of the State
of Louisiana, and carry them to the said
cOffeehouse and there detain them.
The petition then recites the names of
the persons, AYERS that their attempt to
exercise the power and authority of the
Z d., &,%, :,
improper interference with the legitimate
authority of the State, and operates in
juriOusly to its interests and to its irrepar-
able injury. The petition finally AYERS that
the State has suffered damages in the sum
of ten thousand dollars. which is claimed,
and prays for al Injunction to restrain the
said persons from holding an assembly as
and for the House of Representatives else
where than at the Capitol. Among the
persons made defendants was w. 5. Mud
gett, who, it is alleged, claims to be the
Sergeant-atArms Of the assemblage, the
petition prays that he and his assistants be
enioined from exercising such functions.
Upon filing the petition, an order nist
was made, and the defendants were notified
to show cause why the injunctiOns should
not issue. Pending the rule, temporary
writs were granted.
Upon the return of the rule, the defend
ants made no appearance. The counsel for
the State submitted the application, filing
a written brief.
Since the rule was submitted, the de-
PENDANTS have filed an exception to the suit.
which will be proper to notice. They insist
that the petition discloses no cause of ac-
ton OF which the court can take cOgnizance,
that the court has no jurisdiction. as this is
an attempt to "oust the Legislature, or to
control their action"
The Governor filed an amended and sup
Elemental petition. making the Auditor of
the State and State Treasurer parties. This
petition AYERS the apprehension that these
officers may recognize the assemblage of
persons complained of in the original petit
ton as constituting a branch of the Legis-
lature, and may pay pretended claims
against the State upon their order. An in
iunctiO was asked for to restrain the Au-
ditor and Treasurer from auditing or pay
ing any claim or debt against the State
found upon any authority, order or voucher
emanating from any legislative assembly or
any branch of the Legislature. or pretended
legislative department of the government,
other than the Senate and House of Repre-
sentatives holding sessions in the Capitol.
A rule nisi was granted. a1d upon return
thereto, this supplemental application for
an injunction was submitted.
III tut lTIdl VI CdStS III CUuTlS, 1t Is uOl
necessary that everything should be proven.
Many facts go toward making up judg-
ments, though not in evidence. The Judge
takes judicial cOgnizance of history. of the
officers of the government, of the cOnstitu-
ton and the laws, and Of the public acts
and proceedings of the executive and legis-
lative departments Therefore it is proper
for me to notice certain public acts attend
ing the institution OF this suit. which were
the cause of action.
The person bringing the action in the
name OF the State is the Governor of the
State. He constitutes the executive depart
ment of the government, and is charged
with the execution of the laws of the State.
Con-, art. I'd.
The seat of government is established in
the city of New Orleans. Article l3l. The
General Assembly meets annually at the
seat of government. The sessions are held
at the seat of government, and beginning on
the first Monday of January. Article II.
The General Assembly cannot meet away
from the seat of government except upon
the call of the executive. Article GA. In
addition to these provisions relative to the
seat Of government the constitution con
templates that the two branches of the Leg
islature shall meet at the same place
neither house Can adjourn for more than
three days, nor to any other place than that
in which it may be sitting without the con-
sent of the other.
Article 3S. This provision does not have
reference to the seat of government (for
neither house, nor both, can leave the seat
of government), but to the precise locality
at which the Assembly was opened.
1t is stated under oath, in the petition in
this case, that the place fixed for the meet
ing of the Assembly is in the building
known as the Mechanics Institute.
Each House is required to keep and pub
lish a journal of its proceedings. From
these journals it appears that both houses
met Oh Monday, the first day of January
Both houses have met every day since, ex
cept Sundays. Although there was no
quorum in one or both houses, from time
to time, still they had the power to meet
and adjourn from day to day. Article 33
An examination Of the minutes of the
Senate shows that no consent was given by
that branch Of the Legislature for adjourn
ing to another place than that in which they
were sitting.
1t results that the persons made defend
ants in these proceedings upon complaint
of the Governor do not constitute the
House of Representatives. 1t appears from
the minutes Of the first days session of the
House, that these persons are called as
members Of the House, but having left the
assembly they can only be contemplated IL
these proceedings as individuals.
Now, as to the prOpriety of this proceed
ing by the Governor of the State to enjOin
the defendants to the original action from
setting themselves up as House OF Repre-
scntatives.
l understand the exception filed, and to
which | have referred TO mean that this
suit ought not to be maintained, because
the issues are purely political questions to
decide which is not within the province OF
the judiciary.
1t is rule well settled by the Supreme
Court of the United States that the feder