New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-05-26
COURT RECORD.
THURSDAY, MAY Is. 1876.
Vnfted sfates Supreme Caurt.

United States Supreme Court.
The following is . more full presentation
Of the opinion of the justices than has yet
been published:
John H. Kennard Vs. the State of Louisi.
ana. OK rel Philip Hickey Morgan.-In
error to the supreme Court of the State of
Louisiana. The sole question presented for
our consideration in this case. asetated by
the counsel for the plaintiff il error. is
whether the State Of Louisiana, acting
under the statute of January Is, 1873,
through her judiciary, has deprived Ken
nard Of his office without due process of
law. It 10 Substantially admitted by counsel
in the argument that such il not the case, if
it has been done, ''in the due course of legal
proceedings according to those rules and
forms which have been established for the
protection of private rights" We accept
this as . sufficient definition of. the term
''due process of law" for the purposes Of the
present case.
The question before rs not whether the
courts below having jurisdiction Of the case
and the parties haye followed the law, bat
whether the law, if followed, would have
furnished Kennard the protection guar.
teed by the constitution. Irregularities and
mere errors IN the proceedings can only DO
ity does not extend beyond IN examination
Of the power of the courts below to proceed
at all. This makes it necessary for Us to
examine the law under which the proceed
inRs were had and determine its eject
It was entitled IAN act to regulate pro-
ceedings in CONVERSATIONS between persons
claiming Q judicial office" Section one
provided that in any case in which per-
son may have been appointed to the osace
shall have been confirmed BY the Senate
and commissioned thereto,
such commission shall be prima fac;e proof
of the right of such person to Immediately
hold and exercise such office" 1t will
thus be- seen that the act relates specially
to the judges Of the courts of the State,
and to the internal regulations OF State
in respect to its own officers. The second sec.
ton then provides THAT if any person. being
an incumbent of such office, shall refuse to
vacate the same, and turn the same over to
the person 90 commissioned. such person so
commissioned shall have the right to pro.
coed by rule before the court Of competent
Jurisdiction to have himself declared to be
entitled to such office, and to be inducted
therein, such rule shall be taken cOtradic-
torily with such incumbent, and shall be
made returnable within twenty four hours,
and shall be tried Immediately, without
jury, and by preference over all matter or
causes depending in such court,
and the Judgment thereon shall be signed
the same day Of rendition" There is here
no provisions for q technical citation" go
called, but there is, in effect, provision tor
q rule upon the incumbent to show cause
whv he refuses to surrender his office, and
for the service of this rule upon him; the
incumbent was therefore to be formally
called upon by court Of competent juris-
diction to give information to 1T, in an ad-
versary proceeding against him, OF the
ty - Whi0h ha aaanmad RI naFf0fm
the duties of one Of the important Offices
of the State. He was to be told when and
where he must make his answer: the
law made it the duty of the court to require
this return to be made within twenty -four
hours, and it placed the burden Of proof
upon him. But it required that he should be
called upon to present his case before the
court could proceed to judgment. He had
an opportunity to be heard before he could
be condemned. This was process" and
when served it was sufficient to bring the
incumbent into court and place him with
in it's Jurisdiction. In this case It il evil
dent from the record that the rule was
made, and that it was in some form brought
TO the attention of Kennard. for on the
return day he appeared. A. first, instead
of showing cause why he refused to vacate
his office, he objected that he mad not been
properly cited to appear. but the court ad-
1UCR0Q OCUOI Wloos Ut tnOu 6AOWOA lAoS NC
refused to vacsse because he had been
commissioned to hold office until the
end OF the next session Of the Senate. and
that time had not arrived. Upon this be
asked jury trial. This the court held was
properly refused, because the laws pro.
vided against such trial. The time fixed
for appeal, fixed one day after the rendi-
ton OF Judgment and returnable within
two days, is held to give ample time;
speedy, it is true, but sufficient time. In
this case the party did appeal and wss
heard. The judgment was conclusive.
The Chief Justice delivered the Opinien.
United states Circuit Court.
Presentation. j. D. Bradley. associate
Justice of the Supreme Court; Hon: w. B
Woods, circuit Judge; Hon. E. c. Billings
district judge.
Before judges Bradley and Woods.
NJ. and j. Meagher vs.. Steamer Lzzie.-
Libel dismissed
Ex rel. w. j. Behan.
Ex rel. John Thorn.
Prayers for habeas corpus on capiai
issued for each from District Court Of tht
United States, Eastern District Of Missouri
On Indictment for conspiracy with Bing
ham to defraud the United States in tina