New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-02-12
THE COUR Is
superiOr District Cour;

ton to the Lght OF pldlntlu 10 MAINTAIN tHo
aosiou. 1t is claimed by counsel tor plain
tjT that me action is two-fOld il It's char
acter. L i brought for two purposes, under
different st4tute=-first, under the intrusion
in Office acr. and again under another
statute OF alleged statute, which author
ICES a contest OI the election held, at which
this Office was voted for.
One Of the counsel maintains that IL Is
essentially an action unicr tie intrusion
act. and not a suit at all 70 contest the
election. The other contends that II Is Doth
an action TO contest the election and the
right 10 hold the office. Tai. last aclIon
must he brought by the Attorney General
and has signature appears. That i0TmaLIE
of course mas been comritd win. Inc
yqp-ttor as to the character OF the actioh
mus. be determined by the averments OF the
Derition and the subsequent conduct OF Lac
plaintiff. ,,.+
yed that the action is not contest
FAR the lice but that it IS to contest the
election simply. That is the position OF the
gIainti-. Il il urged by defendant that IL
l. an action to contest the election. ana thar
the question arising under the intrusion aC'
can nor he entertained. Inc c0h5tT"ciitA
which The defendant places upon this action
for me ,,!rpose of maint lining It's character
il inyo',ei IN his answer to the notice
served uuon him prior 20 the INSTITUTION Oh
the s,;-. The plaintiff insists that me ac-
fjon ia not prescribed bfcause he coUhd not
know IN. result of the election and whether
~ commence a suit to contest the election
~ al ,ptii the result had been declared by
tha returning officers. Then it must be IN
farrei thar that was has view. thac he
meant 10 file a contest for the office. be-
cause i, was DESTROYS of avoiding the pre-.
EcrIytjon urged against him. He would
not seek to avoid prescription unless he
Con.idered that that was the character @!
haH l.ttOrS4
Court. .,eaausc the other action under the
Intrusion act ia not limited to ten days, and
il weuld make no difference SO tar as the
fen DAYS we're concerned
It appears clearly enough that it rs essen
f,alIv an action to contest the election, ana
the important question Z" be considered IA,
whether sou can EulDulate these two ac
fior. The law has provided q mode OF
yrncairro 10 contest the election, and has
SroyideI a very different mode, III which
differeIr result IN sought. in prGceedings0f
rrty ,rorTnats. or under the intrusion acs.
So tina. the exception that IL was not
brourh. within the delay allowosi must de-
ternine this ease. because the only action
before the court is to contest the election
and the notice has not been given within
the lega! delay. There may, however, be
sOme equitable excuse. because the party
couId not know the result, and could not
know whether he was obliged TO commence
fhe action or not; and the rule which re-
ouirps the limitation TO date from the day
Of the election is harsh. because in many
instance. il might deprive parties from
making the contest. | will therefore pass
over that IA order to consider another 4ues-
ton.
Il then becomes necessary 90 notice
whether the action to contest the election
ran ne maintained, because there Is no law
authorizing it, and whether it is a judicial
i al
lance M all The authorities CITED from
CaIitorrig by one of the counsel were predi-
ca+ad or A statute of that State authorizing
and empDwcrng iudiC;t! inquiry INTO the
,lect.ou. In New York Il Is NOT clear
whethe: there Is such & statute. but the IN
ference j. that there Is. But there " 10
sta+uts IN Louisiana authorizing such a pro
ceedinc as 20 district judges. 1t is clear
%nougb from the constitution th.t no such
u+a+ute could be enacted as II would clearly
involve an inquiry into the election itself.
if the case was opened, unless IL was nm
ited by statute. Ii, under its general Juri5:
diction. without limitation. .he court would
enter upon such an inquiry. II "o1Io DC
practically another election, held under the
srnprvisi0n of the court. and that would be
n nop-iudcal function imposed upon the
court. which the constitution tOTDids.
Art. s..
being u0n-iudicial in character. and one
which the coUr: is not authorized 10 enter
tain. bur forbidden. 1t = an inquiry when l
could pot enter upon or entertain under
statutr il one were in existence. Dui theIc
is no sucl. statute in existence authorizing
fLis mod, OF procedure. aud the Only mOGe
nv which the title to an ONCE can be IN.
uuired into is by proceedings under the
intrusion act. The present action not nav
inc been brought under that statute. can
not entertain the case - all. -.
The exceptions are sustained and the SUIT
dismissed. .,,
State If Louisiana IS Charles Clinton.
Auditor, It al, George y. Sheridan. inter-
yenOr.
SAN. -. same and antoine Duhuclet.
Treasurer New Orleans. Mobile anu 1eXda
railroad. intervenor.
Ordered that an appeal he granted 20 the
Supreme Court, returnaole on the Ihlfu
MONDAY OF March. 1873.
State of Louisiana, ak rel. Patrick Irwin
et AL vs. city Of New OTleans.-Judgmelt
rendered IN favor of reiator and the New
Orleans City Railroad Company. and WITT
of manGamus made psrcmptoTy. requiring
the city OF New .Orls ms 10 cause POlanu
street. tcem Peters to DOlhOnde street.
distance of twenty squares. III the Third
District. "a be wident.! no; less than Sixty
feet in addition TO its present width. on the
lower or north side thereof. ana 10 cause
banduette- 70 be mad. not less than twelve
feet in width each side yt said street. Ii
appears that REALTORS own "a majority OF the
propert: fronting upon !hc street !" sh!s
locality
Second District court.
The following suCc' s.ious have been
Cpeuec !. this court: Mrs. Sarah NJ. Chap.
pei. vie Of Henry {. Dibble. Oner De-
berale. " lie and dau., Inter. Marie Julie DE.
Fourth District uouri.
). Sharp Mcdonald -. John Wilson -
Judgmen: for plaintiff =. :4.c sum o: -" -.
with interest.
J. Kiyierc IS. II 3. :'s'cy and Mrs. NJ. NJ.
Foley.-Csyil sheriff Cr..ertd to show cause
why lie should not turn over - plaintiff
tie proceed, OF the sale of the premises.
sixth District Court.
Mr. John Miller has instituted suit in till.
Cuur, - recover the sum OF Sio1, ;hc dam.
age he has suffered III the loss Of a certain
do. Vuc petition sets forJh that Oh the
nigh. -. the first of August, 1872. about ten
O'Clock. petitioners watch dog. OF New
fouudlauU breed, was ro&oned by the adj
Joining ue.ghbors. joss PHI kurtZ and his
wife. y lu 'ualciously threw poison TO the
said Go- at the Newfoundland breed. who
died il. sequence of taking the same IN ,
his systrta. Hence the suit.
The defendants, for answer. put IN sen
oral denial: Denying specially that the
said Go- was worth any money; that the
tlaintlt had no right uhGcr the EXISTING
laws ana ordinances to keep Il dog: That
he mad not paid the tax OF . required by
the City Council; that the deg did not
wear the metal plate rs required ~ Ia%
tlsr pls;nliff's dog had never been on ilt
street when police officers had oIor!s Il
poison all dogs without the ato!eAci!'4ohe"
plate. e.. IT,,