New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-07-11
VOLUME VIII-NO. 80.
COURT RECORD.
FRIDAY, JULY 10, 1874.
SuDerfOr Criminal Court.


Eugene Staes. Justice OF the Second NUM-
cipal Police Court for the city OF New Ut
leans. Mardamus.
This is an application or the part OF Hon.
E. Staes, Justice of the Second Munlc1pal
Police Court of the city Of New Orleans,
for the exercise of the authority OF thus
court 20 enforce the performance OF duty
imposed by law on the sheriff OF the crlm-
inal courts. The facts upon which the ap-
plication is based briefly stated, are: That
one Esteban Riguelmy was arre sted under
the provisions of law enacted Dy the
General Assembly of the State at the ses-
sion held in the year 1874 known as act No.
9, which act imposes certain restrictions
upon the sale of lottery tickets within the
limits Of the city OF New Orleans and pro-
vides that a penalty shall be inflicted upon
any one violating the provisions Of said
act. and the jurisdiction to determine cases
arising under said act and to enforce
the penalty is given TO the police magls-
trates of the city of New Orleans. Alter
an examination IN the customary manner,
before the Ielato-. Rigueimy, was ad.
Judged guilty of violation OF the law, and
sentenced to pay fine OF twenty-five dol
lara, and, in default OF payment, to be com
| m;tted to the Parish Prison tor the space OF
i've davs The fine not being paid, the
said Riguelmy was delivered over to the
sheriff of the criminal courts as keeper OF
the Parish Prison, and he was commanded
to hold in custody this said Riguelmy, in
accordance with the sentence. WITHIN a
few moments after the disposition OF the
case by the~relator, Riguelmy, through his
| counsel, applied to the judge OF the Sixth
District Court tor writ of habeas corpus.
commanding the sheriff of the criminal
courts to produce the said Riguelmy IN
| that court: the sheriff complied with the
| order, and, upon the party appearing be-
| fore him, the Judge of the Sixth DistrIct
| Court, without hearing any argument on
| the question, discharged Rlguelmy upon the
| ground that he had, on several occasions,
prior to the present. declared that the law
| under which the relator acted was uncon-
| stitutiOnaI The relatOr, believing that the
| Judge of the Sixth District Court had acted
without any jurisdiction, and that great
wrong was being perpetrated 5y setting at
naught the authority of tne police magls'
trates, who, though possessing limited ]u-
risdiction. to the extent OF that lurlsdic-
| ton. are the representatives of the State,
| and also believing that the sheriff OF the
| criminal courts had obeyed an illegal order
| in releasing the party he was commanded
| tn hold in custody, has asked the interven-
| ton of this court to compel performance
| of duty BY an officer who is under the con-
| troll of this court, more so than under that
| of the First District Court, because this
l court LAS 5DCCldA pO"OAo SOiAAo@Aou NCNA ~
| that the latter court can not exercise.
This court has the authority to issue the
writ of mandamus. The question is, can
that writ be invoked under the state Of
facts supporting this application. Inc
Legislature, in creating this court, had IN
view the necessity Of a criminal court
having all the necessary jurisdiction,
aud hence, in the first section OF the
act establishing the court, 1t ls provided
This court shall have all the powers and
duties of court of highest criminal juris-
diction at common law" This
court shal. have power to Issue wrlts OF
habeas corpus for all purposes OF said writ;
also writs of mandamus, and all other wrlts
and processes necessary or Incidental to the
exercise and enforcement OF its lurlsdlc-
ton" Hence it is apparent that the Jurls-
diction of this court is not restricted to the
narrow limits within which the First Dis
trict has been and is obliged to act. Let it
not be understood that any extraordinary
authority is claimed for the Superior Crimi-
nal Court, but that it has all nessary juris-
diction 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 S2S as an "Order directing
the performance of some specific act Ar
ticle $50 saws: ''The object of this order is
| to prevent a denial of justice, or the oOnse-
| uuence of detective police, and it should
therefore be issued in all cases where the
law has assigned no relief by the ordinary
means. and where justice and reason require
that some mode should exist OF redressing
a wrong, or an abuse of any nature, what
ever" Art. S34. "It may be directed to
public officers to compel them to fulfil any
| of the duties attaceed to their office, OF
which may be legally required Of them"
Article ninety three OF the constitution OF
this State contains the following provision:
"In the parish Of Orleans there shall be
elected by the qualiyed voters OF the parish
! at large, one sheriff for the Criminal Court,
who shall be the executive officer of said
court. and shall have charge OF the Parish
Prison" Section three of the act creating
this court provides, "That the the sheriff
of the Criminal Court for the parish of Or
leans shall also be the sheriff and executive
officer of the Superior Criminal Court "
Under sections 1892 and 3393 OF the ne
| yised Statutes, the several judges OF this
State are given general supervisory control
over the executive officers OF their courts,
and these officers may he either fined or
suspended by the court having jurisdiction
| over them, tor disObeying not only the
orders of the court of which they. are the
executive officer, but OF courts that have
TIE authority to exact from them
any duty. 1t becomes apparent,
been quoted that this court has the
power to exercise sufficient control over
the sheriff of the criminal courts to compel
a proper performance of any duties I'M
posed upon him by law, and that the writ
of mandamus can be properly invoked for
that purpose. 1t is erroneous to suppose
that there must be some case pending before
the court in which the writ is to be avalled
of. The proceedings in reference to man
i 5o,rs .ra ORIGINAL. they constitute the
case; were it otherwise no writ OF man
damus could ever issue.
The power Of all courts OF competent ]u
risdiction to issue writs OF habeas corpus
can not be denied; but that this writ can
be issued in all cases and that it can be
used for any purpose is distinctly contro-
yerted. 1t is very customary for people
who are ignorant of the fundamental prln
ciples of all laws to descant more
or less oratorically upon the people
writ" as some are pleased to call IT.
and to work themselves and their thought
less hearers into the belief that to under
take to restrict the use Of the writ OF haDeas
corpus within the proper limits Is an arDl
trary use of assumed power; and yet llttie
| reflection and careful examination OF the
law will convince any rejecting mind tha'
often it is the abuse, and not the use, OF the
writ that causes all the mischief. Some
times, though fortunately rarely, courts
use the writ so as to arrOgate to themselves
appellate jurisdiction, in which case wrong
Is perpetrated. On this subject MIR. Cooley
in his able work upon constitutional limlta
tions. uses the language:
''In the great anxiety on the part of oul
legislators to make the most ample pro
vision for speedy relief from unlawful con
finement, authority to issue the writ O1
habeas corpus has been conferred upon in