New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-01-31
THE COURTS.


and Safe Deposit Company eI als.~Oh NO
s;on of George 5. Lacey, City Attorney, and
anon euggesting 80 the court tina. the pre-
sended agreement, or contract, relied on oy
@omplainans 10 his original and supple
moentaI bills Of complaint, if maintained by
arc couys would have the effect OF disabling
sbe l,ity Council from enacting any ia"
chat might be deemed essential 20 the pup
Ole good. i,,o
Morsovss, she restraining order OF ID uhc
aioD granted upon the Srlglna! Dill, ana tht
INJUNCTION prayed for in the supplemental
Nil Will have the effect of preventing the
mupisipaI authorities of the city OF Ne" VT
Lans from adopting such Legislation as Is
;4nnerntiysls required for tho interest Oh nv
a,uhic. and will greatly tend to prevent All
Hunicipal legislation whatsoever
A. ie ordered that c0mplanans sho"
eanse On Friday, the thirty hrst instant, 81
1psw rhy the restraining order hereto
fn,e GRANTED should not be vacated ana eel
.side md the rule % show cause why III,
smpction a. prayed Cor in the supplemental
all abould not ne dismissed at the COST q!
complainant on the grounds MED.
limited States vs.. Z. q. Eason.st al
1urv.srial-.J Judgment GoE plsintlft iOT $oo'-
GOO, interest and costs.
Same 90. Sam..-Jury trlal:-Juugnl eh !
Cor pl.iAti6 fos s9692, with la's'eS' gnu
" ssyye.ss Csurs.
abi.s Justice iudeling delivered Che
,';,'ian of The .onrt in the following case:
The stat. ek rel. Z. II. Morgan W. ). H.
kennaJ6. c, as7a
Che following rule was filed:
An motion OF A. Y. Field, Attorney Gen
oval nf ,be State of Louisiana, herein ap-
soaring upon tho relation OF Philip hickey
Morgan, q st sident of the parish OF Or
tV,fs on
sougt SO understand and bs informed IS
gOllOws, viz:
Ybat said Y. ". Morgan was nominated
nv the Acting Governor of the State TO
Ale Senate thereof, 60 fill the othce OF AS
enciate Justice OF the Supreme Court OF fhe
state of Iouisisns; that the said nomlna-
zion was duly confirmed; that ne was
commissioned thereto on the 1ourth
asav of January, 1873 that he
Mas saken and subscribed the oath
occurred by Law; that ne is entitled and
spnowered 10 execute aud fulfill the duties
af said office according TO law, and to have
and to hold said office, with all the powers,
brivilcges and emoluments thereof; and on
Snrther suggesting that John Il. kennard,
also a resident of said parish, unlawfully
holds said Office and executes the duties
$hereof. and claims the right 20 the office
and to the powers, privileges and emolu-
Ments thereof it is ordered that said John
Al Kennard show cause, on Saturday, Jan
narv 10, 1873, at eleven o'clock A. NJ, why
IT should not be forthwith decreed and
sdiudged that he IS unlawfully holding and
exercising the duties OF said Office OF Asso-
state Justice of the Supreme Court OF the
State of Louisiana, and the sand = II. MOT.
gan he deereed and adjudged entitled
6ereto.
con the dav on which said rule was made
1eturnable, the eighteenth ofJanuary, John
81 Kennard filed the following exception:
"And now comes John H. Kennard, and
excepts that there has been no citation
issued herein or served on him M the case,
and prsys 50 be hence dismissed with
costs"
court a ana. and then the defendant filed
the following exceptions and answer,
TO wit;
Now comes John H. Kennard, defendant
in this suit and excerpts to the rule herein
taken by A p. Field, Attorney General, on
ISOLATION OF p. ii. Morgan, on the ground that
said proceeding by rule, in manner and
form as set forth i'll said rule, - not author
Szad by law, and further, that the act OF
Stteenth of January, 1873, entitled " an act
TO regulate proceedings iD CONVERSATIONS be
swesn peI sons claiming % Judicial Office ,
as to its firss section, is unconstitutional
and yoid. not being in conformity se the
eitle of said act; and further chat said isct
rs prospective and does not apply I" pend
SnG litigation; aad further. that sai1 act in
ISOLATION 20 sections swO and three is 3inc0n-
mtItutionaI, az 10 authorizes proceedings
shich amount to n denial Cd Justice; and
6ulther that if said act is 30 be construed
as apDlicable to suits instituted prior 80 ito
Nassage, it Is retroactive ana void as vi0-
Sasjve of article 10 of the constitution.
In case these exceptions be overrRleS,
and not otherwise, for answer TO said rule,
&bis respondent AYERS that he was duly ap-
pointed by the Governor OF the State 20
SLs Office of Associate Justice of the Su-
Dreme Court of the State of Louisiana, on
che third of December, 1872, vice W. W.
siowe resigned, during the recess 81 the
Senators. and that on the same day be was
sluly qualified and took possession of said
office, having complied with all legal re-
auirements and his term of office has not
get expired.
The exceptions were overrSled OF che
eighteenth of January, 1873. ana the trial
of the rule, which had been fixed for the
eighteenth of January, 1873, was e0m-
menced and was continued - Monday, the
twentieth instant.
On the twentieth OF January the follow
ing amended and supplemental answer and
prayer for jury was filed
Now comes J. IL. kennard, and for fur
cher answer prays for trial by jury, and
pleads that the said act OF the Legislature,
under which relatOr, 2. IL. Morgan, claims
90 proceed is null and void, as viOlative of
section one, article fourteen OF the c0nStitu-
zion OF the United States, which torbids any
State from making any law which shall
Rbridge the privileges and immunltics of its
Sitizcns, and prohibits any State from de
Nriging any person OF life, liberty or prop
srtv, without due process OF law, or 20
sieny to6ny person within lta jurisdiction
che equal protection OF its laws; and il said
law is void, this court has no jurisdiction TO
proceed by rule, in the manner and form
as set forth in said ;"le.
The prayer Cor q jury was refused by the
Sadge d Qu0 on the grounds tha: il ~as
shade only On the twentieth of January,
after the trial of the case
Aad been commenced on the eigh-
seenth, and continued for trial 10 the
twentieth, and because the act of the fiji
seenth Of January, 1873, forbids T. The
trial was concluded on the twentieth day
of January. but Judgment was rendered il
favor of the rel2t0r, and against the de
PENDANT, on the same day. The defendant
&as appealed.
During the course OF the tria! several
calls of exceptions were taken - the rui-
ings OF the district judge, which We will
proceed to notice.
The first bill of exceptions IL 20 the re
gusal of the prayer for "A jury on the ground
shat the defendant was entitled thereto
ander the constitution of the United States
II was decided by this court, as early as
ISIS. that the provisions of the federal con
etitutiOn relative TO jUries refer only 10
erials in the federal courts. and not to those
IN the STATE courts. Marvin rs. MARTINEZ,
8 Mart, 1876. And in Dabb. VS.. Hemken,
decided in 1912, this court said the claim Of
o constitutional right to trial by jury in
all controversies when the amount exceeds
$50 has been 40 long settled by this court
chat it is unnecessary to comment ON Ii
now. 3 Bob. I26.
In the case of the City Bank Sc. Banks e.
sl., Chief Justice Eustis said: The trial by