New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-01-19
Argument Of Judge Henry g. Dibble fof
the state Before she Supreme Cosr'
JanunFy IS, 1873.

Nav it please the Court approach the
discussion of this cause with considerable
hesitation. | feel that q great response
bility has been imposed upon me when it
is made my duty to reply to the argument
of the learned counsel who last addressed
the court. No one appreciates his ability
more than |; and yet, may it please the court,
| was somewhat surprised at the argument
which was addressed to your honors by
him in this very important case. could
not bat notice the tact that during his ex-
tended and able discussion he omitted to
consider the vital question at issue in this
controversy. The point which | think your
honors must decide, in order to properly
determine the case, is as to which of the
two returning boards-relatOrs and re-
spondents in this casc-is the legal return
ing board Of elections for Louisiana. Your
honors will remember that the learned gen
tleman did not consider this inquiry at all.
l shall be obliged in the course of my dis
cussion to consider the question, and l
shall urge your hOnors to pass upon il as
the vital issue in the case.
Il was surprised, furthermore, may il
please the court, at tho effort made by the
learned counsel to have this appeal dis
missed for various technical and, ! may say,
hypercrtical reasons. | believe that this
case should 20 upon great principles of law
and Justice. l believe that underlying it
there are equities, and | shall attempt to
lay those equities bare, in order that this
high tribunal NAV seize upon them and pass
upon the question as to the legality of the
returning officers against whom these pro-
ceedings were taken ny the State, or. rather,
the persons claiming to be returning officers
of elections. But while shall attempt to
consider the case from this broad view,
believe that | am prepared to-day to meet
and answer every objection made by the
distinguished counsel, however technical or
hypercritical
This suit was brought in the court below
by the State under the intrusion in Office
act, for the purpose of BUSTING certain per-
sons who were claiming to exercise official
functions. 1t Is true that joined with the
State in these proceedings are other persons
whom the State AYERS are the legal rotnrn-
ing officers but this is u suit between the
State and certain persons claiming to eXer-
else public functions. | desire TO ask the
court TO keep this tact in mind during the
discussion, for many of the points involved
will turn upon the correctness of my view
upon this point.
The suit is brought by petition in the
name of the Attorney General, ana the
prayer of the petition is that the respond
ents, Jack Wharton and others, be decreed
to be usurping and intruding into the offices
named, and also that the persons joined
with the State may be declared to 6e the
legal returning officers of election. Subse-
quent to the filing Of this petition, Il sup
Elemental petition was addressed to the
court, i'll which it was alleged that the per
sons made respond snts were about TO pro-
coed to exercise the functions OF returning
officers, notwithstanding this litigation to
determine the legality of their claims; that
if they should be allowed to proceed ia oan-
vass the returns of the election their con-
i \ Il Al
court to execute its judgment in the event
that it should transpire that the persons
Joined with the State were indeed the legal
officers; and therefore an injunction was
asked for To restrain these gentlemen from
acting pendente lite. It seems TO me, may
it please the court, that this injunction was
properly granted under the circumstances.
1t is the duty of every court tn maintain its
authority. 1t is the duty of courts of origi
nal jurisdiction TO make such orders III the
progress of cause as may be necessary
to render it possible that the Judgment may
be executed when it is given, however that
judgment may 60.
A rule nisi was ordered by the Judge Of
the lower court, under tho practice which
had been established by him, in order that
there might be argument upon the applioa-
ton, and in order that the persons made
respondents might be permitted to file con-
Trajectory affidavits ; that the court might
not be led entirely by the averments of the
petition, and that the argument might go to
the enlightenment OF the mind of the judge.
After due consideration, the injunction
upon the supplemental petition was granted,
and the persons made respondents we're or
dered not to persist i'll acting as returning
officers until the final determination OF the
issue made between the State and them.
Subsequent TO the issuance of this writ, the
respondents appeared in court and fled an
exception to the jurisdiction of the court.
The attention of your honOrs has been
called 10 this exception by the counsel for
the appelees. Subseque to the filing of
this exception there was II change in the
presiding otncer of that court, and the
counsel for the respondents made applica-
ton before the new iUdgo for a new trial
Ii is called in the record a motion for q new
trial. Now this proceeding, if the court |
please, was ire gular, and, so far as l am |
acquainted with the practice IN the cUutis |
of original jurisdiction il this State, uu-
known. A motion for new trial can not |
be made unless there Is judg |
ment in the case; and n mere in |
order, or rather
nero preliminary order Of injunction, |