New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-01-14

in conformity with the law; second. whether
a man who presents himself for member
ship possesses the requisite qualifications;
and third, whether, at proper election, he
has received a majority of legal votes cast
under the law. And in passing upon these
| questions, it is said they do not act in a
| judicial capacity to determine what the law
| is. since the judicial power, by section one
| of article six, is vested i'll certain courts
and officers: but they sit under the law to
apply it, as judicially expounded. to the
| facts before them.
| 1T is a sufficient answer to this argument
| that while the constitution has conferred
the general judicial power of the State
upon the courts and officers specified, there
are certain powers of judicial nature
| which, by the same instrument, are ex-
pressly conferred upon other bodies or Off
GERS; and among them is the power to Judge
OF the qualifications, elections and returns
of members of the Legislature. The terms
| employed clearly show that each house, in
deciding, acts in a judicial capacity, and
there is no clause in the constitution which
| empowers this or any other court to re-
view their action. The general superin
tending control which the Supreme Court
possesses under section three of article six
of the constitution, 'Over all inferior courts,
does not extend to the judicial action of the
| legislative houses in the cases where 1t has
been deemed necessary to confer judicial
powers upon them with view to enable
them to perfect their organization and per
| form their legislative duties. The houses
are not inferior courts in the sense of the
constitution. but, as legislative Organiza-
tiOns. are vested with certain powers of
final decision for reasons which are clearly
| imperative.
1T may happen, as suggested in the ar
gument, that with each house not only de-
Gliding for itself questions of fact but also
constituting for itself the law. we may some
times witness the extraordinary spectacle
OF the two bodies constituting and enforcing
the law differently, while a third construc-
ton is enforced by the courts upon the
public at large. But with this possibility
in view, the evils OF allowing the courts a
supervising power over the decisions of the
houses upon the admission of members, are
so great and SO obvious that it is not sur
prising that the trainers of the constitution
reirained from comforting the power.
The supervision could not ordinarily he
exercised during the session of the legis
lative body, and to correct the decisions
atterward by amending the laws passed,
would only he to substitute great public
evil for that which might have been a
wrong to an individual member ard to the
district which elected him, but which
could seldom affect the State at large.
at can make no difference that in this
case. according to the pleas, the question
passed upon by the House was purely a
question of law. The question of the legal
election of a member Is usually question
compounded of law and fact. and the House
must necessarily pass upon both. If We
I have the power to review the decision III
one case, we have in all. If we can correct
their erroneous construction of law, we
have the same power to correct any errone
Gus decisions upon returns, qualifications
T. 4
: that the constitution has not conferred
upon us this jurisdiction, and whether the
decision made is right or wrong, we shall
leave it where it has been left by the fun
darnental law of the State.
By this then, it is clear this court vii
! take judicial notice of who compose tho
executive, and who the legislative depart
ments of the government. 1t Will have
recourse to the journals of the House o
Representatives, and SO far as the names o
those who compose that body are therein
, contained it will be concluded And what
, ever action either branch of the Genera
Assembly NAV take in determining who ar,
: entitled to membership. whether it be I'm
, just and preiudical to the public interest
and in open violation of all principles o
fair dealing, is no concern OF the judiciar,
:. department. The constitution has placed
that matter in the legislative department
and courts are forbidden to touch it
Here it may he well to consider what i
the distinction between a political question
and a judicial question. For with til,
former courts have nothing to do.
This distinction" says Mr. Justice Mel
, son, of the Supreme Court of the Unite,
: States, in tine case of State of Georgia vs.
; Stanton. 6 Wallace. II. this distinction re
suits from the organization OF the govern
f ment into the three great departments
{ executive, Legislative and judicial. and iron
.. the assignment and limitation OF the power
of each by the constitution.
, 1.-The judicial power is vested in one Su
. preme Court and in such inferior courts a
, | Congress may ordain and establish tn
political power of the government in tn
f other two departments.
, The distinction between judicial an,
political power is so generally acknowl
edged in the jurisprudence both of Englan'
! and of this country, that We need do II
q more than refer to some of the autho,
+ tiles on the subject. They are all in on
direction
. Nabob of Carnatic VS.. the East Indi
! Company. Nesev. PIP. 375. 1913: S. c. Id. st
+ so: Penn VS.. Lord Baltimore Eesey. 4l6-7
q | New York VS.. Connecticut, Dallas, AZ.
The Cherokee Nation VS.. Georgia, ) Pc
! ters. |. 20 30. 30, 81, 10; the State of Rhod
; Island VS.. the State of Massachusetts,, |
Peters. 60, 733, 7737, 73S.
\ i he doctrine utuuctu from lntSe author
ties is that courts can only pass upon ques
= tons OF property and OF individual rights
when presented to them.
g What is the law of the land! What eha
be the constitution! What shall be tn
government, These the political depar
ment determines. The courts simply de
!, clare them when called on to apply them
. | individuals.
a This court can have no right. says MI
| I,,st al in tln cd
. nounce an abstract opinion upon the const
: tutionalty of State law. Such law mus
be brought into actual or threatened opera
: ton upon rights properly falling under j.
| dicial cognizance, or "a remedy is not to b
, | had here.
r And the learned Justice continues, in tn
q | same case that the bill filed presents
5 case which. if it be the subject of il
Q judicial cognizance, would in form com
under a familiar head Of equity .iurisdit
= ton, that is, jurisdiction to grant an il
= junction to restrain "a party from a wrOns
or injury to the rights Of another. wher
@ the danger, actual or threatened, is ir1,
:. parable, or the remedy at law inadequate
But according to the course of proccedin
) under this head i'll equity. in order to eI
n title the party to the'remedy, a case must b
+ presented appropriate to the exercise of il
l., iicial power; the ri ghts in danger, as W
j. have seen, must be rights Of persons c
; property, not merely political rights. whic
), do not helong to the jurisdiction OF a cour
II either i'll law or equity.
IS There is no doubt. then. this court cal
# not pass upon political question. Thel
Il is DO doubt, in the event of a diSagreemer
l. between the legislative departments of
If government. the judiciary could not set
/ the dispute. In a controversy betwec
members of the Legislature claiming sea
:. in the General Assembly, in the injury il
n ficted by an expulsion. in the deprivatio