New Orleans Republican., 1875-11-30
COURT RECORD.
MONDAY, NOVEMBER %, 1875.
United States Circuit Court.

judge.
Shook g. Palmer We. w. B. Cogswell ct
al. Fixed for December IL.
The new rule reported by the committee,
John A. Campbell, S. R. Walker and j. r.
Beckwith, Esqs., will 60 into effect Febru-
ary l.
Hon. j. P. Southworth was appointed
United States commissioner and qualified.
A jury was ordered for, and the court ad-
journed to Monday, December 6.
United States Commissioner's COurt.s
Before Commissioner r. H. Shannon.
United States vs.. Ferdinand Dudenhefer
aud Jacob A. Hageman; same vs. Jacob A.
Hagemsn.-Affidavits of Louis Schneider,
president of the Germania National Bank,
against defendants as principal and acces-
sorry in the embezzlement of $4,000. and
charging Hageman with embezzlement of
$500, under the United States Revised
Statutes, 5209, providing, under the national
banking act, tor imprisonment of from five
Supreme Court.
IN CHAMBERS.
State ex rel William Read Mills vs. Judge
of Superior District Court.-Rule to show
cause why the rule for suspensive appeal
should not be reinstated, issued returnable
Friday, December g.
Present-All the judges.
The following opinions were read
By CHIEF JUSTICE LUDELING.
No. 577S-State vs., Peter Phillips.-From
Superior Criminal Court. The defendant,
having been convicted OF the crime of per
jury and sentenced to imprisonment at hard
labor for five years, has appealed from said
Judgment.
It will be necessary to notice only the
first assignment of errors, which is in the
words following: THE trial and sentence
was coram non judice, in this, that George
IL. Braughn, Esq, an attorney at law, had
no legal right to act as judge in the trial of
the accused and pass sentence on him; that
the order appointing said George H.
Braughn as Judge of the Superior Criminal
Court is null and void; section ten of the
act No. l2i of 1874, under the authority of
which said order so appointing said George
II. Brsughn IS judge aforesaid was made,
is unconstitutional and obnoxious to articles
eighty three, ninety and ninety -four of the
constitution of the State" The State as
sumes the position that Mr.. Braughn was
De fasto Judge, and that his right, to hold
the office can not be questioned cOllaterslly.
In his brief Mr.. Attorney General says:
I'VE assume the position that the ques-
ton Of Judge Braughn's authority to act as
judge of the Superior Criminal Court on
the trial OF this case can not be heard and
determined by this court on this appeal.
That if the court, from an examination of
tuo IcCUEu, uuub Uuht DT6uguu Whb y UG
tacto officer when he tried the case, the
validity of his acts will not be questioned.
The position is founded on q rule Of law
which has been repeatedly recognized by
the Supreme Court OF this State and Of
other States, i. e., that the acts of de facto
officers are binding as to third parties.
Whether the appointment of Judge Braughn
as Judge of said court was or was not legal
can only be considered in suit prop.
erly instituted, having for it's object
his vacation of the Office into which
he has intruded, or which he has
usurped, or which, from any cause, he lille
gally holds. Any other mode OF attacking
his powers, or the legality of his acts con-
sidered only ss Judge, would be subject to
ties, and done collaterally in proceedings
the issues of which were made for wholly
different purposes, to which the Judge is not
party and can not be incidentally made
party by plea or exception, and be thus
required to contest his de jure right TO act
as Judge in particular case. He can
only be required to show in any case that
he is acting under color of title. On these
points authorities are abundant to sustain
what we have said We refer to Is Mass,
1873. ILL johnson, 1876; 8 Abbot's Dig 352;
U. 5. Dig, vol. 2 OF 1871, p. 5l9; An, 633,
10 An, 52i; l3 An, 607; - An, 33; l6 Peters,
II; ID An, 4O4; 25 An, 5iS, 67l.r
The proposition that a dc facto officers
right to the office held by him can not be
attacked cellaterally, is uEquestionable
But the error in this argument is in assum-
ing that MIR. Braughn was de facto officer.
Mr.. Braughn did not pretend to hold the
office of judge of the Superior Criminal
Court, but on the contrary, he recognized
the right of Judge Atocha to said office, or
he only claimed to exercise the functions of
that office under delegation Of power from
.IuAUa Afnoha Tho riuht Of A oho
TO said office was never disputed by Mr..
Braughn, and his right to preside in that
court would have been acknowledged by
Mr.. Braughn and the people any day during
all the time Mr.. Braughn acted under the
said delegation of authority. Therefore the
question about the validity of de facto Off
GERS acts can not arise in this case.
The question is, had the judge of the Su-
perior Criminal Court the right to appoint
an attorney to act in his stead, as he did. by
the following general order rendered in
chambers:
NEW ORLEANS, February 30, 1875.
The judge of the Superior Criminal
Court tor the parish of Orleans, A. A.
Atochs, Esq, being temporarily una BILE to
act in his capacity of judge by reason of
severe illness, it is ordered, pursuant to the
provisions of section ten of act No. 1874 of
she General Assembly of the State, ap-
proved April 9, 1874, and under the power
and authority granted, that George Fl.
Braughn, Esq, an attOrney-at.law, who is
duly qualified, be and he is hereby ap-
pointed to preside as judge Of the Superior
Criminal Court for the parish of Orleans,
during the inability of the judge to act as
above set forth, and shall, during the time
he shall act, have the same powers as the
Judge of the court. 1t is further ordered
that copy of this order be further commu-
nicated to the Governor, Attorney General,
Secretary of State, district attorney, and
sheriff Of the criminal court.
A. A. ATOCHA,
Judge of the Superior Criminal Court of
the Parish Of Orleans.
1t seems to be conceded that the act No.
l24 OF the General Assembly of 1874 con-
ferred this power on the judge of the Supe.
rior Criminal Court, if it be constitutional.
Is it constitutional? Article seventy three of
the constitution provides that "the judicial
power shall be vested in q supreme court,
in district courts, in parish courts, and in
justices of the peace" and article eighty
three of the constitution declares that "the
General Assembly shall divide the State
into judicial districts, which shall remain
for four years; and for each dis
trict court one judge, learned in the law,
shall be elected tor each district by plu-
rality of the voters thereof. For each dis.
trict there shall be one district court, ex-
cept in the parish of Orleans, in which the
General Assembly may establish as many
district courts as the general interest may
require" etc.
In 1853 the General Assembly passed an |
act to provide for the trial of recused cases
out of New Orleans, by which the recused |
Judge was authorized to select three men, |
hers of the bar in attendance from which |