The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1874-07-12
SUPERIOR CRIMINAL COURT

ond Municipal Court for the City Of New Orleans
Mandamus.'
1t will be recollected that alb out six weeks ag
one Estaban Riquelmy was arrested under tn
provisions Of a law enacted by the General As
-embly Of the State at the session held il
the year 1874, known as Act No. 8, whicl
act imposes certain restrictions upon the sal
Of lottery tickets within the limits Of the city o
New Orleans, and provides that penalty shall
be inflicted upon any one violating the provision
Of said act, and the jurisdiction to determine
cases arising under said act, and to enforce thu
penalty, is given to the police magistrates OF thu
city Of New Orleans After an examination be
fore Judge Staes, Riquelmy was found guilty ant
sentenced to pay S25, and in default Of payment
to be committed to the Parish Prison TO-
five days. The fine not having been paid
Riquelmy was delivered to the Parish Prison
Within few moments after the disposition o
the case by the relator Riquelmy, through lls
counsel, applied to the Judge OF the Sixth Dis
trict Court for writ of habeas corpus, command
ing the Sheriff of the Criminal Courts to pro-
duce the said Riquelmy in that court. The
Sheriff complied with the order, and upon the
party appearing before him, the Judge OF the
| Sixth District Court discharged Rique my, upon
the ground that he had on several occasions
prior to the present. declared that the law under
which the relator acted was unconstitutional
Judge Staes, alleging that the Judge OF the Sixth
District COnrt
HAD ACTED WITHOUT ANY JURISDICTION,
10 AtOcIl1 IOT W COIl-
pei the criminal Sheriff to re-arrest Riquelmy.
The case was tried Saturday last, and on Fri
day Judge Atocha delivered an opinion, granting
the mandamus and ordering the Sheriff to rear
rest Riquelmy.
The Court, in passing upon the case, said: The
Court has the authority to issue the writ of man.
damus. The question is, can that writ be in ok
ed under the state Of facts supporting this appll-
cation? The Legislature in creating this court,
had in view the necessity OF criminal court hay
,v,<~o f1,a ory-I raIIn md
the first section Of the act establishing the
court it is provided:
"This court shall have all the powers and
duties Of court of highest criminal jurisdiction
at common law.
''This court shall have power to issue writs OF
habeas corpus for all purposes Of said writ, also
writs Of mandamus and all other writs and pro-
cesses necessary incidental to the exercise and
enforcement Of its jurisdiction" Hence it Is APP
parent that the jurisdiction ofthis co';rt is not
stricted to the narrow limits within which the First
District Court has been and is obliged to act. Let
it not be understood that any extraordinary
authority is claimed for the Superior Criminal
Court but that it has all necessary jurisdiction
for court of its character.
WE NEED NOT GO TO THE COMMON LAW
for definition Of what constitutes the writ OF
mandamus the Code Of Practice speaks Of it in
article 1913 as an ''order directing the perform
ance of some specific act" Article No. $50 says
"The object Of this order is to prevent denial
and it should therefore be issued in all cases
whore the law has assigned no relief by the ordi-
nary means, and where justice and reason require
that some mode should exist Of redressing a
Article S34 "It may be directed to public Off
GERS to compel them to fulfill any Of the duties
attached to their office, or which may be legally
required of them"
Article SO of the Constitution Of this State con-
tains the following provision: 4" In the parish OF
Orleans there shall be elected by the qualified
electors Of the parish at large sheriff for the
criminal court, who shall be the executive officer
Of said court, and shall have charge OF the par sh
prison." Section Of the act creating the court
provides THAT the sheriff OF the Criminal
Court for the parish of Orleans, shall also be the
sheriff and executive officer OF the Superior
Criminal Court" Under sections 1892 and 1898
Of the Revised Statutes, the several judg Of
over the executive officers Of their courts, and
these officers may be either fined or suspended
by the court having jurisdiction over them, for
disobeying not only the orders Of the court Of
which they are the executive officers, but OF
courts that have the authority to exact from them
any duty. 1t becomes apparent, therefore, from
the laws
WHICH HAVE BEEN QUOTED,
that this court has the power to exercise suf1i-
cient control over the Sheriff Of the Criminal
Courts to compel proper performance OF any
duties imposed upon him by law, and that the
writ of mandamlls can be properly invoked for
that purpose. 1t is erroneous to suppose that
there must be some case pending before the
court III which the writ IL to be avalled; the pro-
ceeedinSs in reference to a mandamus are origi-
nal; they constitute the case; were it otherwise,
no writ of mandamns could ever issue.
The power Of all courts Of competent jurisdic-
ton to issue writs OF habeas corpus cannot be
Denied but that this writ be issued in all cases,
and that it can be used for any purpose, is dis
tinctly controverted. 1t is very customary for
people who are ignorant Of the fundamental
principles Of all laws, to descant, more or less
oratoricaily, upon the peoples writ" as some
and their thoughtless hearers into the belief that,
to undertake to restrict the use Of the writ OF
habtas corpus within the proper limits, is an arbi-
trary use of assumed power; and yet, little
reflection and careful examination OF the law will
convince any rejecting mind that often it is the
abuse and not the use Of the writ that causes
all the mischief. Sometimes, though fortunately
rarely, courts use the writ
SO As TO ARRoGATE TO THEMSELVES
appellate jurisdiction. in which case wrong is
peipetrated On this subject Mr.. Cooley, in his
able work upon Constitutional Limitations, uses
this language In the great anxiety on the
part of our Legislators to make the most ample
provision for speedy relief from unlawful contine-
mcnt authority to issue the writ Of habeas corpus
has been conferred upon inferior judicial officers,
'ci,o make use Of ii sometimes as j It rere q tc,'a
Of error, under which they might correct the
errors and irregularities Of other judges and
courts, whatever their relative jurisdiction and
dignity. Any such employment Of the writ is an
abuse Cooley, c. L., 347.
The proposition that upon a writ of habeas
corpus the constitutionality Of law of the
Legislature be inquired into, that being
the only question submitted for the considera
ton of the judge, and decision be of binding
effect, is one, which, if assented to- necessarily
will bring about chaos in the administration Of
justice; for if it be true, then judge can arro
gate to himself all the judicial power Of the State
and make of himself little judicial autocrat. l
do not pretend that at common law, on writ OF
habeas corpus the Judge may not go behind the
commitment and inquire whether the magistrate
had jurisdiction; whether that jurisdiction was
properly exercised under the law, and even
whether there is properly defined offense i'll the
statute under which the magistrate has acted;
but there is a very great and most important
difference between undertaking to determine
that the magistrate has not acted
WITHIN THE SCOPE OF THE LAW
or that the law does not properly define the
otfense intended to be created, and determining
that the Legislature violated the provisions OF
the Constitution IN enacting the law. The ques-
ton determined in the former case is the capaci-
ty Of the magistrate to act in the latter it is the
power of the Legislature under the Constitution.
1t seems to me that the simple statement of