New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-01-24
TIE as!vRvIge BOARD CONTROVERSY
THE COURT HAS JURISDICTION


Che information OF the returning Objects VI
elections vs. Jack Wharton ct als.-Appeai
from the Superior District Court parish OF
Orleans.
The petition of the State on the relation,
etc. in this case, represents that liz u
Warmoth f. J. Heron, ohm Lynch, james
I,onrstrect and Jacob Hawkins constitute
the legal board of returning officers, ana
are duly qualified as such, Tor making inc
vaturns of the elections held III this State
an the fourth of November, 1872, and that
,JacL Wharton, f. Ii. Hatch and Durant
DaPonte are pretending TO be such oftlcers'
and are attempting 10 act as such, ana are
interfering with the above named parties IN
tbe discharge OF their official duties: me
petitioner prays that said Wharton, Hatcn
and DaPonte be cited and decreed TO De IL
tr11ders into and usurpers of the ONCE OF
raturn1no officers of elections, and that SAID
Heron. Longstreet and Hawkins be de-
Greed 10 be such Officers. In supple
mental petition an injunction Is asked lnr
restraining and prohibiting the defendants
from acting as such returning officers or IN
tarIering in auy way with the legal board
On this petition "A rule to show cause ana
restraining order were granted.
To this rule the defendants made the
following answer:
t. The petition disc .oScs no cause or
action of which this court has Jurisdiction
:. The said Wharton, AZ appears by the
Sifidavits On file, was duly appointed to
slischaroe the duties of the Office OF Sec
satarV oS State during ihe suspension OF
.Gseorge L. B0vee, and de ~ actually and
peaceably in the discharge OF such duties
now, and wac SO at the time the petition
end supplemental petition were filed.
4. Ihsr. as it appears by Che atiidavits on
Gle, De and y. II. Match ana Durant pa
Ponte we're duly summoned 20 sit as re.
eurning officers for the election held the
Ar e hnr hai IA
fourth day - said mon Il. and qualified as
such, and sheir slectioD and appointment
ore valid.
After hearing evidence and argument on
Both sides, the judge tDibblei delivered q
written opinion, in which he held that the
ssformants were the legal returning off
GERS, and ordered that the Injunction issue
D. prayed for
Two DAYS afterward to wit December
or, 1872, counsel for the defendants moved
for new trial in the case, on the grounds
that the Judgment rendered is contrary
90 law and evidence, and also because she
slaintiff and REALTORS have nc standing in
court the law under which REALTORS claim
having been repealed.
This rule was fixed for triar ON che
gwenty-fifth of the same month, on which
day il appears that Judge Gilmore presided,
Having been, in the meantime, indicted
into the place of Judge Dlbble; and on
chat day an exception was filed by defend
ants "tO the petition OF plaintiffs and their
eight to have and MAINTAIN the said suit,
on the ground of aud for tho reason that
the court has no jurisdiction of the sabject
Snatter thereof" The rule for new trial
was continued to the second day OF De
eember, when, after hearing pleadings and
counsel it was taken under n visement,
and on the next day 1.-THE third) the judge
5Elmorel granted "a new trial, giving as his
Geason that the act of the Legislature, APP
Droved on the twentieth of November, 1872,
had repealed the act oil 1917, creating
board of returning officers, and conSe-
quently no such board existed, and there
was no one authorized 70 count the votes
or make returns of the election of 1872,
until new appointments should be made by
proper authority. On the same day. as
appears from the minutes OF the court,
motion was made by DEFENDANTS counsel,
and granted by the judge dissOlvlng the
Injunction issued in the case and dismiss
ing the suit. From the transcript OF APP
peal it appears that this judgment was
not signed until the second of Jan
uarv, 1873, when the record OF fhe
suit having been transferred to the Supe-
Pior District Cont, and the Judge thereof
having recused, it was signed by Judge T.
l.. Lynch, of the Fourth District Court,
who granted an appeal theretrOm to A. 7.
Field, Attorney General. upon his allegation
that he was aggrieved thereby, and his aft =
davit as to the amount of his interest III
wolved
The defendants have fled the following
gnotion in this court
Now come the appeIlees and move 20
dismiss the appeal taken IN this case Oh the
following grounds:
l. The Judgment was rendered by w. \.
Gilmore, Judge of the Eighth District Court.
on the third day of December, 1872, and
was of character that did not require
signature, and no appeal could therefore be
taken after the lapse of ten days from its
@endition.
,. That no Judgment rendered by the said
$udge of the Eighth District Court could
be signed by the judge OF the newly created
Superior District Court.
3, That that portion Of the act Of the
Legislature creating the Eighth District
Court. which authoriz ii the appointment
of a judge, is unconstitutional, null and
void, and therefore the said T. L. Lynch
had no authority, acting i'll the place of
Jacob Hawkins, Reused, 70 sign said judg-
ment.
4. That A p. Field, the appellant. has no
interest whatever in taking this appeal
which this court can recognize.
;. That A. Z. Field, the appellant, has no
interest in the appeal taken by him, mas
much as the plaintiff returning board has,
Z,
exercised the authority At claims, canvassed
aud announced the res alt of the election as
TO the office of Attorney General, and there
fore as TO appellant and his lights, the said
plaintiff returning board is ftactuS ofiCiO,
and no longer can exercise the functions it
claims so far as said Field is concerned.
6. That said appeal is made returnable on
the sixth of January. from Judgment
signed on the second OF January, 1873, the
usual period of citation, ten days, not being
allowed, and the law requiring the appeal
to be returnable in ten days.
/. The judgment was not signed at the
instance or on the motion of Semmes &
Mott. of counsel for defendants. and il this
fact is denied the case should be remanded
to ascertain the truth, and the court had no
right TO sign a judgment unless applied to
by the party in whose favor II was rem
derrd.'
We have thus detailed The proceed
ings, because the main objections of the
defendants before us To an examination
and decision of this cause are purely tech
meal and we must therefore be careful to
Eontine our investigation 10 the matter,
only which are really and properly pre-
sented in the record. Aud ~ IhIs SOunee
Sion we sill premise that VS can give M
force or tiect to- the document filed here
during the argument, y bich bears tit
signature of she judge shO Dismissed
the case in the sOuSs % p"s et al'
Spears si'nply TO be 2Ae original ms
ton. IN the Handwriting cG defendant,
counsel tc dissolve the Injunction and els
miss the suit filed on tbe Hhird of Desem
Der, and entered in the minutes % that date
for the first and only tiSlOa. ahere il Il,
date to the act of signing, .o1 nothing to
show when is was signed See 6. J.. JI3
$40 IL is not containc6 ~ Tho TRANSCRIPT,
IN it's present form, and IL now acre Seber!ed
to in the IieaGIngs 0s Stc"l,o n eiths0 shS
inferior or appellate CONF, AMI 81 e incon
sisteut with the grounds Of tho taotier e