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

LOulsldDd; neiC january a, Iofo D.
SecOnd-List of the Senate. Of Louisiana,
certified by y. q. DeslOnde. Secretary OF
State.
Yhird-An official notice in che New Or
leans REPUBLICAN of December g. 1872, on
the fifth page thereof, being compiled re-
turns signed by John Lynch and others, Pc
turning officers declaring certain persons
elected Senator'S of the State of Louisiana.
Sourth-The record in tho case Of the
State ex eel. Attorney General, etc, VS..
jack Wharton and others, Ne. IL 81 the sn-
periOr District Court.
To the introduction OF each and every one
of said documents the defendant objected
on the ground that the evidences was lrreie-
want. The objection was over uled ana the
evidence was received We are of opinion
that the evidence was properly received.
The defendant alleged in his answer thar
he had been appointed during the recess %
the Senate 90 fill the vacancy created ey
the resignation of Mr.. Justice Howe. and
that tho term Of his o6Ice had not get eIptred,
claiming that under article siXty-one OF the
constitution his commission did not expire
until the end Of the next session OF the
Senate. 1t WAS pertinent, therefore, TO
prove that there had been session OF the
Senate, and that that Senate had confirmed
the appointment OF the plaintiff. She fact
that subsequently during the argument of
not question the fact that there had been
Senate of the State of Louisiana in session,
bue cOntente3 Themselves in simply con
tending that there had been but one session
Of the Legislature. which was still cOntinu-
ing. does not make the evidence offered less
ger man to the issues in thi. case. Nor is
it a reason TO reject the evidence. We
might have taken judicial cognizance of the
fact that there had been an extra session of
81 Il h. ~,
pOintment OF the defendant. Considering
the technical objection. which have been
urged 90 prevent trial on the merits of
this case, il is not surprising that
extraordinary prudence should have been
exercised by the plaintiff in the
introduction OF evidence in support OF his
case.
We will notice the several exceptions
urged against this suit: The first relates
to the want of q citation. The form and
manner of bringing litigants into court is %
matter entirely WITHIN legislative control.
Csde Of Practice, article 81, discloses: Civil
actions may be prosecuted, according 90
the nature of the case, by three kinds of
proceedings, 20 wit: Ordinary, executory
and summary" Article % declares that
"the proceedings are ordinary when eta
ton takes place, and all the delays and
forms of law are observed; they are eSecu-
tory when seizure is obtained against the
property of the debtor WjUtOut precious .ritc-
ton, in virtue OF an act OF tit!e importing
concession Of Judgment, or IN other cases
prottded by tec. They ara summary when
carried on with rapidity, and rithOut the
observance Of the tOrntaNtieS Jeg0iyed IN
ordinary cases, as when courts provide tor
the administration Of vacant SUGGESTIONS
and the property of minors and absent
heirs In the case of city of New Orleans
VS.. Elijah Cannon, the defendant was sued
for the city tax of 1853, and was cited under
the thirty-ffth section of the consolidation
act of 1852 Whick substituted IN lien of peti-
ton and citation the constructive service by
advertisement of the tax bin in the official
newspaper Of the city. Mr. Justice EoUr-
hles, being the organ Of the court, held
that such proceedings, in the absence of pc
tito n and citation, are not uncOnstitu iOnal,
and that summary proceedings clearly fell
within the term due process. of law. 10
An, PIP. 76l, 767. In II An, p. 375, Chief
Justice AerricG. Ss the organ OF the court,
said:
ut Is in the power Of the Legislature to
determine in what manner parties may be
brought into court, and We have recently
decided in regard 70 city taxes, that 3 de-
cree rendered upon .Ec:S notice Is obi
SatOZS."
The proceeding by ,uie is not new under
the laws Of this State, and whenever the
Legislature authorizes it, that form of
remedy may be adopted by the litigants.
The delays allowed by the new law are in
no sense in conflict with the constitution of
tle United States
The delay of one day 90 answer, if INSULT
cient, would undoubtedly be extended by
the court, if requested to do so. Che Code
OF Practice provides, tina. when the de
PENDANT appeals. he may pray for further
time te ansveC. and the court may grant
UrtheC delay. il necessary for the Iyur-
poses Of Justice article 3I6. The escep-
ton that the law ef January -. 1873, violates
section one of article fourteen OF the CEN
-titution ~ che Uaitei States 10 utterly
without fOunda.i"n.
1t merely provides a more speedy reDr6g
for the settlement OF contests for judicial
offices. It is based upon sound COZ si6era-
tons OF public policy.
The maintenance of the rights of pe.@e.ss
and property, the preservation OF the Sub-
lie peace, security and order depend Upau
the prompt certain and uninterrupted ad-
ADMINISTRATION Of the law, it is essential that
those VIII" exercise power shoulG be clothed
with unchallenged authority.
For this purpose, no douDt, TIE Resisl3-
tire of louisiana passed the Law providing
tor speedy trial and settlement of con
Hicting claims of persons to judicial offices.
In Rice IS. De Buys this court said Ne
cessity appears TO require that the posses
sion of the elective offices shall be deter
mined without the delays of az ordinary
law suit" : An 1913.
In Borgstede VS.. Clark she eOurs said
1" But in this proceeding 40 appeal is per
mitted, no matter what may be the pecuni-
AIRY value of the office. In the case of De
Buys the coastitutiOpality OF this provision
of the statute was debated. We sustained
its constitutionality and yefused to enter
tain an appeal, because we considered the
contest matter of public concernnent and
not law suit between individuals." :,
An, 49,.
Another exception 90 the mode OF bro
ceeding is thar the suit should have been in
the name of the claimant Morgan alone. and
not in the name eff the State, etc.
We deem it sufficient to state thar Nor
gan is "a party plaintiff with the State and
he has been represented by private counsel
in both courts; if 10 be conceded, therefore,
hat the new law authorized The suit in the
name alone of the party claiming the office,
the State having been Joined with him in
his demand did not inyalidate the proceed
.ngs. Ute per HutHc non rsia'ie. But
sea ) W heaton, 29S Wallace vs.. Anderson
size. u Ann, al.
The other exceptions are SqUalty without
foundation. The title of che law does indi-
cate sufficiently It's object, and the law was
!, OF designed to have any retroactive action.
The sui. was instituted on the sixteenth of
January. 1873, after the PRONUNCIATION of
the law in question, which was in operation
by the terms OF che law Sro9A and after
its passage"
Ca The merits, she question ia have She
plaintiffs proved their demand Have they
shown that j. II. Morgan was appointed
and confirmed 90 the office of Associate
justice OF the Supreme Court OF the State
Of Louisiana
The public 10 concerned in knowing this |
fact. To determine that question il is !
necessary 10 know if his appointment was !
made by the Governor OF the State, and if |
thaf annnin.mnnY has haan cn,lfirrua.I h,. l