New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-03-13
THE VAN NORDEN CASE.
Opinion Of .Jud1e T0lea fprrO,


lished several days since:
State of Louisiana, ex rel. W. Van Nor.
den VS.. &. ). Sauvinet, Civil Sheriff, etc.
he is under illegal arrest, and held
| in custody by the Civil Sheriff of
the parish of Orleans, in obedience to
an order rendered by the Judge of the
Sixth District Court for the parish of
Orleans, on the sixth of March, 1872, SEN
tencing him to arrest and to be held in Gus
tody by the Sheriff for the term of ten days
for an alleged contempt of the orders of the
said court. He alleges that for the offense
charged against him, and for which he was
sentenced as aforesaid, and under .retense
Of which he is now under arrest and de-
prived of his liberty, he has applied to and
obtained from the Governor of the State of
Louisiana full pardon and remission of
said offense, and that he has presented the
same to the Sheriff, and demanded his re-
| lease; but. notwithstanding, the Sheriff re-
fuses to discharge him, unless under an
order OF the court which authorized the ar
rest and detention of the relatOr. He there
fore applies for a writ of habeas corpus,
directed to the said Sheriff. command
ing him to bring the relatOr before
the Supreme Court of Louisiana, or
any Of the judges thereof, and show
cause why he thus keeps the relatOr i'm
prisoned and deprived of his liberty, and
why he should not be released and dis
charged He prays relief, etc.
The facts seem to be that in the month of
February Of the present year suit was
brought against Van Norden, the relatOr,'
by j. B. Lewis, to recover from him a cash
lOx and its contents, alleged to contain the
Imount OF $4,000 in money and public se-
lritics, which box and its alleged contents
I'd been deposited with the relator for safe
eping. A writ Of sequestration was
.ued to take the box out of the hands of
Z relator, and. upon his refusal to deliver
lbe was sentenced to be arrested by the
s.riff, anu to be held in custody by him
fthe period of ten days, as for contempt
ocourt. Application was then made to
Il Governor of the State for pardon,
w,h was granted The Sheriff. conceiving
it be his duty to hold the party in Gus
to until otherwise ordered by the court,
dened to release the prisoner upon the
prntation of the pardon granted by the
ex,tive; and at this stage of the proceed
lnEhe application was made to this court.
or any OF the Judges thereof, for a writ of
halls corpus. which was issued ac-
corgly.
.Tquestions for determination are:
Els this court, or any of the judges
coming it, vested with power to issue the
writ habeas corpus prayed for in this
case,ld to maintain jurisdiction OF the
matt presented by the petition of the
relate
Sec-IIas the Governor of the State
the pr to grant a pardon to a party sen
tenceG imprisonment by a court for a
conten of it's authority!
Artle92 ofthe Code of Practice pro-
vldes 1.-THE Supreme Court and each of
the Jud: thereof shall have power to issue
wrlts o1beas corpus at the instance OF
persons actual custody, in cases where
they maave appellate jurisdiction" etc
we rid the order under which the
party III case was arrested and is held
in CUSTODY the Sheriff, as constituting a
part OF tLoceedings in the suit of Lewis
vs. Van Nen. The order of sequestra-
ton was Tered by the judge in the exer-
cIse OF hisicial functions in determining
the lssuesasented by the parties. The
. order ol GOnment consequent upon the
relator an contempt forms part of the
proceedlnsl the action pending. 1t !
grew out tnd constituted an impor-
tant part oese proceedings. 1t is not |
easy 10 ounect it from them. |
. we 40 hotew it in the light OF |
n separate i,endent, isolated action or |
: proc"euiuS' Ehed from the main action, |
r. and wholly nected with it. Ifw en-
tertalned Ut on this point, we should
leel IL W "o ot.1Ity, in case involving
Hutst.cu "a -sonal liberty, to assume
(ulisalctiui. matter in controversy
!. pttWeen the pc to the suit is clearly |
;. within tne luIl ion of this court. Be
!, SIDES, tne reiat1 1,esents himself as occu
;. pyin@ also round. If the order of
/ Imprisonment Considered a decree or
Judgment entii tstinct from the suit, in
= the pfosecutt1on itch it originated, that
0ecree OF JuIsnit the court is one from
. whlch tht relaiol Id have the right OF
appeal nc an: :snder oath that that
decree, oy aePitri IN of his liberty, de
- ,eht'oh iio.n ntn ", and suspension of
his nusint1S. g. IL n to an amount ex-
ceedIng 500.
!, The next inquiry, ,s the Gorernort tbe
piefoSa.iro u pa:u cases of conviction
ana punishment M ~. empt of the author
i'y oi coutt INC litigation which we
navy neon 80 ~ OF this question
ooes no' ."'.5 +e chief executive
o1ncel -. ' rJon without power
" CA'enu t;s party con-
), 'lcte" an" VIZ 80 for contempt
constitution Of the witch notaS
. an exception in sucl os That -
= President of the Cniteato - "io,hnd
d with the power to graIrdons in cess
), where Judges of the u Statas oour,s
u punish for contempt is ch ottIad -
"a Opinions OF Attorney c. ,>aa,o 80.
Opinions of Attorney G1' p 80 20.
Blatchford's Circuit COur nrts 7oln,n.
seven, page twenty-tour cases there
cited.
The analogy between tn -, .,,<,,
power by the President o.ls .ha 81 S,stos s,.ea
in cases of the sort arising -. -, as
? the United States, and the; 80 H..
power in a sing lie State by ,,,o ,,ornor j.,
the same class of cases arisi ,hn .n,,r+s
Of State, seems to be strOii Ill L.
10 fined There being no exec 4,,nd -
:, our State constitution prec, =, ,,ah
!, cases, the exercise Of the pard' n".sa ~ 81.
tive bv the Governor of the Pn., ,n 81
e no hesitancy in recognizing ;s+orno
4 | That the Ottense arising from ta..
J. of the authority OF court, 1b;cb I
a. from it's nature. should be SUI, Will
i ishcd. to the end that an etficiery pIIo
: some exercise OF judicial pow NY
. had, no one will question. Butt
ls entertained, to some extent, ttn;sh
. | ments decreed for such Otfensek. ,o, .
. essarily be inflicted at the stern a,+ mn
4 of the Judge, without remission ,ata
inent by the pardoning power, NOT {
- find to rest upon any hrm of i
principle or authority. con 81 81
court Is an otfense against the ~, :
It not an otfense against the judge pei
In such a case the State is the y; | ,
party, and it belongs to the Stat
through another department of itsrs
ment, to pardon or not to pardon, at I
cretion, the offender. That this is a. t
n, power, and should be used only i O
s, manifestly proper, we are at liberty :,
G, private judgment. to believe: while,
pe ether hand. we have no question that c
in the exercise of the power of pun a
for contempt may arise, although inst g
of the kind are rare. We can scarcely :,
" it compatible with the genius OF liberal Il
ernment and free institutions that &c
should be no shield to protect an lndlTiT
against "a tyrannical exercise by Judg,