New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-03-29
cording 10 law. Appellees to pay costs Of
eal.
Superior District Court.

preme Court.
State Of Louisiana ex rel. HFpolite
M0Ony vs.. II. H. Harris, tax collector
Writ OF mandamus refused.
State OF Louisiana vs.. Charles Clinton,
AuditOr.-And now comes the State, by A.
7. Field. Attorney General, and upon sug
gesting 20 The court that there is error III
! the Injunction herein issued, the order was
modified 40 far as 10 embrace ONLY The war.
| rants issued to w. A. Weed Il Co. for print
! ing blanks. etc, and stationery for the elec.
| ton Of 1872.
Accommodation Bank vs.. +. c. Mahan.-
| Detendan: was refused a new trial
Judge Hawkins yesterday pronounced
the following opinion in an interesting case
| under the new law regarding contests for
| Judicial Offices:
W. B Kemp vs. E. P. Ellis.-This action
was first brought by the plaintiff before the
Fifth Judicial District Court in the parish
OF IangipahOa, to recover the Office of dis
trict judge otsaid district. to which he al
leges he was elected and has been commits
stoned by the Governor. 1t being a contest
for the office of district Judge and both
plaintiff and defendant setting up claim
10 the office. they were both recused by the
law and incompetent to make any order in
the case. The parish Judge of the domicile
OF he defendant was therefore re-
quired to sit as district Judge and
hear the cause. Z. J. Bradley was the par
ish Judge Of the parish until the result of
The election held in November, 1872, was
legally made known. 1t appears from the
certificate Of the Secretary of State that
there was no PRONUNCIATION by the return
ing officers for office of parish Judge OF this
parish. This office thereby became vacant,
and the Governor appointed and commits
stoned said {. j. Bradley to the office.
Bradley was, therefore. the de tdct0 and the
| u. II ,rh oil
time, and the only one who could entertain
or hear a cause before the district court
where the judge was party. The acting
district jud re. Ellis, being party defendant
in she case. 10 recusation was necessary
Oh his part TO authorize the parish judge to
sit in his place and hear the cause. On the
tenth of February. 1873, a rule was taken
before the Sixth Judicial District Court for
the parish of Tangipahoa, at the instance of
W. Il. Kemp. against E. =. Ellis. alleging
that be .hempl had been elected and com
nissioned TO the Office of district judge of
the district. and that Ellis refused TO give
up the office. To this rule Ellis appears to
have made no answer, hut at the suit of
JOIN w. ADDISON, who claimed 10 have been
elected 30 the Office of parish Judge. Ellis
claiming 70 be and acting as district Judge.
granted an Injunction restraining G. j.
Bradley from acting as parish Judge. The
parish Judge. Bradley, being thus restrained
from acting as parish Judge could not act as
district judge 10 try the rule OF Kemp VS..
Ellis. However irregular or illegal this in
junction NAV have been, its effect was to
prevent trial of the case. II Bradley had
attempted 10 try this case or any other as
parish judge. pending the injunction,
though It was illegal, he would have been
in contempt of the authority of the district
court. and could have been punished there
for. The only alternative left the plaintiff
was 30 either abandon the contest or
apply for d change of the venue. Article
!l2 Of the constitution authorizes the
Legislature 90 provide for the change of
venue ID civil cases. Act No. 80 OF 1873
provides for change of the venue to this
court in the class of cases to which
this belongs. and in pursuance thereof
an order OF this court was made on March
s. iS5. directing the parish judge of the
parish Of langlpahoa, acting in the place Of
the district judge, who was a party TO the
suit. to transfer the record in the ease 10
this cOur, for trial.
Exceptions were taken by the defendant
- the regularity and truthfulness OF the
facts upon which the eX parte order of
transfer was granted. The evidence offered
on trial of the exceptions showed that the
order was properly granted. The OF lection
that the act No. 80 IL void because ii is un.
. constitutional is without weight. The title
the Jaw. and Il appears to re-enact the pro.
visions OF Other statutes which il Eupplants
Constitution, articles Ia, llG. The objec-
ton that transfer of a cause from another
territorial Jurisdiction 20 this, gives this
court extra territorial jurisdiction, is not
sound. A transfer of a cause in this way
gives this court no jurisdiction over the
person or property of the litigants. BY the
action OF the district Judge in the parish of
Ianglpahoa, preventing the trial of the
case by injunction and the transfer by the |
parish judge. this court became vested with
jurisdiction of the case.
ON THE MERITS.
Plaintiff exhibits commission signed by |
Governor Kellogg, dated the twenty fourth |
Of January. 1873, which recites on its face |
that w. b. Kemp was declared duly elected |
judge Of the Fifth Judicial District. The |
defendant Ellis exhibits commission |
dated fourth of December, 1872, signed BY |
Governor WarInoth, which recites that |
Z. p. Ellis was declared duly elected Judge |
OF the same district. If the case rested |
alone or the two commissions, and no
other evidence was in the record, the later
commission would govern, because. being
the latest in date, the presumption would
Oe that the executive had acted in cop
torTnity to law. But this Office is elected
by the people and both commissions show
that their authority is devoid from the
election.
The evidence shows that at the time
the frs. commission issued, viz: on the
fourth CT December, 1872, no official
PRONUNCIATION of the election had been
made. and the declaration by the Governor
that Ellis was declared duly elected was
made without any knowledge of the facts.
Tie commission being predicated on the
election returns and declaration of the re.
suit, and being issued before the result was
do u al,
the twenty fourth of January, the date of
hemp's commission. the proclamation of
he election had been made which showed |
hat Kemp was elected. AS soon as the re.
'ult of the election was made public the |
erm of the preceding judge expired. Kemp
)eing declared elected, and showing his
from the Governor is en-.
tiled TO The office, and is and was
rom the date of his commission the d. ju1e
Judge of the Fifth Judicial Oistr!c: OF the
'tate of louisiana
Judgment for plaintiff.
In the case of Rosenberg We. Charles |
linton, State Au itor, in which relator
rayed for mandamus to compel the
ec0gnltlon OF certain warrants, alleged TO
ave been issued under an appropriation by !
he Legislature of 1873. for the expenses of ! :
he General Assembly of 1871. Judge Haw-
ms refused the application.
Fourth District Court.
lhere IS now being tried before Judge 7
.ynch case involving the late Auditor
'Ickltfe, and presenting a feature of con-
dera6le interest to merchants and bank
rs From the record it appears that Jacob !
homas purchased from one Friedlander
large amount in Wickltfe State warrants.
wing II payment thereof his notes. ana
lese notes trledlander subsequently sold -
one Hirsch.
1t is matter of history that Mr.. Wick
tie twarraHts turned out to be fraudulent, |
nd on the ground that his promise 10 pay
as conditioned upon certain contingencies
uchlng the payment of the warrants