New Orleans Republican., 1873-05-25
COURT RECORD.
SATURDAY. MAY "a, 1873.
Suurpn,0 COurt.

I Gated.-Appeal from the tlfceenth j Judicial
District. parish of LatourcEo--Mr. Justice
Ialaterro delivered the opinion of the
court III the words and figures following,
to vii:
| This is a controversy under the Intrusion
ac. tor the office OF parish Judge OF the
parish of Lafou,che, each OF the contest
ants claiming to have been elected to that
office at the general election held IN Novem-
| Der. 1872: Judgment was rendered IN favor
| OF knobIoci1 and Collin has appealed.
Under the intrusion into ottce act. we DO
no: find authority conferred upon The
courts to 90 beyond an inceStiga ton
of the titles set up by the contestants
! for the office IN controversy. The TIME at
! which the law was enacted and the clrcuM-
| stances which required lis enactment show
clearly that It contemplated cases only
! where the parties held adverse munlments
of title. importing righ: in the holders 20
the o.iic. cOnteuded tor, to cases where
each OF the parties held a commission. or
] where ore Of the iitigants claImcd bv certl
tlca.e OF election AID the other Gy appoint
| meut. exhibiting his commission and Set
ting up the ineIigibiicy Of his adversary.
I Tie intrusion law was passed IL October.
1863. Previous 10 and subsequent to that
time persons were frequently elected to
! offices 20 which they were ineligible by
| reason OF the Iisa abilities then imposed Uy
| law upou them from having been active
! participants in the late rebellion. Others
| claiming these offices under appointment.
and holding commissions asevldence there
OF could It sort TO tbs law to have these
I conflicting claims jiiicially teci3ed.
But the question in cases OF that cias.
was simply the eligibility OF one of the
parties and the validity OF the others com
! mission. We think review OF all the
cases aijudicated by this court. under the
intrusion act. will show that IN every in-
| stance the issues We're as we have stated
! them, and that no case will be found which
depended on it. solution upon the inquiry
as 70 which of the contestants obtained the
larger number of votes. The adjustment
and compilation Of election returns, de-
| termining the number of legal and illegal
| votes cast for each candidate declaring the
resu!. of an election and furnishing the
successful candidate with proper certii-
cate; in short. experimenting acc con
trolling all the details OF an election belon z
primarily aud properly TO the pol!tica. de.
partmen: OF the government.
This court. in the case OF the State VS.. the
iud re of .ne Second District Court. - An
D. 90. Judge Spotford being the organ OF the
court, WEI! remarked: The conrestiug of
! votes - no- q judca: function oliv So far
as made such by special statute. Indeed.
some ma. have gone SO far as 10 question
whether this Is Eoc wholly matter OF ad.
:e referred 20 the judicial tribunal a. all.
At any rate. it is clear that such tribunals
can ROT usurp any greater control over
this business than is specially mposed upon
them by law. In the absence of a statutory
authorization. they are without jurisdiction
OF tile matter !'uiiOHs 0satertG.
The Legislature Of this State did bv
statute IL iS5j delegate to the district
courts the pewor 10 decide through the
agency OF iuries. contested elections in re.
! gard to parish c-ficers. The jury in such
cases has the righc to determine which of
the parties i. entitled to the office. or 70
refer the matter again TO the people to be
settled By new election. Revised Statutes.
pages 80. 80. Isl. 2S:. Under This statute
to examine the grounds OF the con.
testat.o1 and go into ali the details
OF the election rccessarv to ascertain
which candidate received the majority OF
the legal votes pole! :. the election. Be-.
it IS ONLY under this statute that courts can
proceed - supervise the counting OF cotes,
correct calculations. purge the polls of lie.
gai votes a:li ascertain and establish ma.
!oritIes. 1. is confined tD case. where no
commissions have issued. 1t expressly re.
Huices that the eontestat.oc shall commence
! within ten days, that il shal. be conducted
, summa:i!v. and directs the withholding
. OF commissions unit. the investigation may
. be completed and the result legally pro.
claimed. The suhiec: matter OF proceed
ingS under the intrusion acc Is widely Git
. 1eren, from that OF the statute Of iSo5. In
eases unde: the intrusion law. courts can
/ no: &c behind commissions legally issued.
, To uetern!iie the validity OF commission,
. they can not. under this act. go beyond the
! returns and report OF the legal returning
officers for a.. the elections OF the State.
. The returns made bv lega. State board.
=, -'grat. t,v- I'd
! as the genera! returning ctflcers tor
the State az large. constitutes tie
+. basis upc: whIel: the Governor is
authorized ~ ISSUE COMMISSIONS. These
/, returns are. 0- the act OF Marci. H.. 1870.
| made prill: evidence IN ali courts o: jas
tee and before a.. civi. officers until set
; aside after a ccn-es: according TO law. o:
tle right of any person named therein to
!. hold and exercise the office TO which he
shall by such returns I've declared elected.
+; This prilna face evidence. it Is provided.
| may be rebut.eu and set aside. but this. WE
, apDrehenG. could only be done bv proceed
i1gs under the statute OF 1850
. No authorize is delegated TO the judiciary
, under the in rusion act to discuss, mt di :
OF abolish the official returns ot the regular
State returning officers.
| AS we have already aa:d. it is wei. settled
J: that the judiciary have no warrant OF au.
i, thoritv to exercise ;uri :sd!ctiOn in matters
of elections unless i. be expressly delegated
by the Io-ordnate branch OF the govern.
men, Controlling the political department,
and no express authority Is granted under
the intrusion ac: - INQUIRE into the cor.
rectness of election return. officially pro-
! n.ulgated by the legal returning officers,
such RI ght calnO: Dc assumed as al in.
piied power.
The act of 1873. numbered 100. approved
March IL. 1870. i, tie general law under
which tne elections held at the general elec.
ton in Novemb Der. lS.:: were conducted. and
which controlled as to the forma!ities of
revising AID compiling the returns from
every part OF the State. and the making
and promuigating the tina! report.
It may be remarked here that. il tie case
we have referred 70 in l3 An. y. 90. it was
! he'd by Judge Spotford that. out OF the
!: parish of Orleans. there was 20 law pro.
vding for judicial scrutiny into the votes
tor any others than parish officers" With
the character OF laws. as being od:ous or
entitled 20 favor, courts have not to deal.
Ii the statute Of 1870 is liable to grave
criticism. i: Is no fault of the judicial tri.
bunal5. 1t is not for them to declare it
infamous. even if it be 80 But it Is their
duty to give it effect a. a law wherever its
provisions apply.
Uaier the views we have expressed. we
conclude that in this action under the intru'
sion act the court f"n have improperly
gone Into the inquiry in regard to the de.
tails 0: the election held in the parish of
Lafourche in November. 1872 and the cor.
rectness of the official returns promulgated
by the returning officers for the State.
The contes: is therefore limited TO
the simple question OF which of
the contestants holds the legal and
valid commission. Kuoblock presents
commission issued by H. c. Warmoth.
Governor. on the fourth of December. 1872.
His competitor. commissioner. issued TO