The New Orleans Democrat. (New Orleans, La.) 1875-1876, 1876-05-17
JUSTICE WHY DISSENTING.

Treasurer. but that the Returning Board, w re
fusne to canvass and count the votes at certain
POLLS and In certain parishes, and by feIecting
others after investigation, SO changed the result
as TO make II appear that Dubuclet received a
majority Of the votes. and 8 declared, and Du
buele was thereupon commissioned. tie
charges that the canvass was not fairly made,
and the conduct ~ the Returning Board was
arbitrary aud fraudulent.
The petition was dismissed on the exception
that II disclosed no cause Of action. and the
court was without jurisdiction ~ inquire into
the action of the Returning Board that its acts
are limited to it's own discretion, and its findings
are not subject to review by any court
The doctrine that tire Buard of state Gan
vassrrs or Returning Board is vested with the
power contnnded for by defendant and that its
action cannot be reviewed Nv The courts how
ever arbitrary and fraudulent II may be. is q
doctrine that Is not supported hy act % ~ the
acts If 1872, the law organizing said Returning
Board. nor is II authorized by any law OF this
turning Board and providing for The canvass IF
the votes after an election, declares that The
returns Of the elections thus made and nromul
gated shall he Pripo teri evidence ~ ~ conffs
osiie pftpl. contest cfeordiugto lrr Of the right
oi any person named therein 70 hold and eyer-
else the nifiee ~ which he shall w such return
be declared elected"
What does this language mean2 i means
what il SAYS: Y hat the findings Of the letnrnin
Board are not conclusive but they are only
pr,ma facie evidence in al courts Of justice
until sef rsidp rfe 2 eop est rccpfdipg N 'r'r
The intention Of The law eirer IS not obscure
the Returning Board by the u,ts whenever q
complaint il made Nv a party interested that the
canvass NJ de by such board is unfair arbitrary
or fraudulent, and that it's Injurious tot the com
rlainant.
There Is no doubt the statute ~ question wac
passed In reference to article ten u the eonstiu-
tiYn and the laws If the state. giving remedy
stitution declares that ali courts shall
he open. and every person, for injury
done him in his land goods, reason
Uni hpF nlo to lie
Ivy due process ~ law and justice administered
without denial or unreasonable delay. II
majority If as1G votes over his . ,pone T. Antoine
Duhunst and was irandulently counted ont w
the Returning Board as he alleges in the petit
ton land this avar,npnt must be taken as true
~ the purpose Of trying this exception there is
no cause of actionl he has been unnstly de-
ptynd If his office, his rights have been in
vailed and Nv article 10 ~ the constitution the
courts are omen ~ give him ana lepuate RENE
administered" e him without denia1 and IN
reasonable delay. Soc also 81 An t3s.
had occasion in nv dissenting opinion in the
ease Of Bonner w. .Yneh, as An 2s7 e argue
this question very fully and cited authorities
that the action Of a state Board Of Ganvassats. or
Returning Board, il not beyond the reach II
judicial inquiry that the duties Of such buari
are ministerial and can he reviewed by the
courts. / viii not repeat the Argument bot sim
plv refer to iny opinion In that case in support
Of the position take in this. Under the con
State ffpnnFnl Assembly,
could not if II desired confer judicial power on
the Returning Board. because Article ~ provides
that the judicial power shall he vested IN q
SUPREME Court, in District Courts, in Parish
Courts and i'm Justices Of the Peace
In nv opinion the petition discloses cause II
action, and the canvass Of the Returning Board
IL not beyond the reach Of judicial inquiry. II
cate Of The Returning Board that gives a right to
an office think the ease should be remanded
to be tried on the merits.
n T. hat; /, -
a review pf the action Of tia lie
turning Board by the courts the General As
ssemhy by oversight neglected to prescribe the
ton cannot he carried into effect II ia n sound
rule Of construct on that where statute gives
right and fails t. indicate the form of the action
to enforce IT, the court will presume tho law
giver intended the right n be asserted under the
general rules of practice existing ut the time
that where ~, no special form e. action is men
eiver intended the right to be asserted under the
usual forms of pleading. In my opinion. the
an " he wsH ana II iii %
where special form OF action is not provided
legal rights may be asserted IN the usual forms
that II The law -eiver niendai no special form 81
action for cases arsne)undar this statute is that
such Intention is not disclosed in the ct and no
pute to the General Assembly the lamentaba
weakness OF giving right and negeeting to
furnish q remedy TO enforce II. Nor do think
u
tion both OF law and equity. TO permit substan-
tial rights to he lost for technical reasons or to
decline to protect citizen in a most valuable
right simply because there IL no statute pre-
scribing form for the action. In nv opinion
II right exists. the courts Of this State being
courts Of law and equity, can give adequate
relief. az required by the constitution
And this WIS the opinion Of this court in the
recent cnse of the Cresc mi CITY tias Light Con,
pany W. New Orleans Gas Light Company q
In considering the question that came M in
that ease whether whore a legal right shown
is there q legal remedy. this court said " the
plaintiff is injured to the extent claimed and is
crippled hy the Loss Of s credit go as TO bn i'm
peded in carrying ont its contract with tho State
founded on the oct of March l. 1860, which is al
legged 10 he unconstitutional and void, the rue=-
ton is. can this court redress the wrong II
which plaintiff complains. and give the relief
prayed Tor IL the petition We think that il
can" After quoting article 10 of the constitu
tion the Court uses the following language; " II
actions mentioned in the Code of Practice. The
authors of our law have not seen fit TO prescribe
forms for every legal demand. and they have
not catalogued in the Code Of Practice all the
actions that may be Brought in courts: II is
perhaps reii Hnt then hhr- not lime go test by The
of q farm. substantial relief IN some
ar es g ra % '"'' o op, nGss p gs
tn has sho,cn ~ injury, and II tho,o he 40
cypress lg'r giri,ng rerneay, il con, up
rew'ess. Revised Code, art ~ Marbury VS.
Madison, / Crancb III; Dodd vs.. Benthall, 4
Heskal so2 State vs. Patterson. N. J Law iss
State vs. Jersey City, "a N J. Law 800; Storys
Equity Jurisprudence. page 81 . Browns Legal
Maxims 100. billiard on Iniunctions $50; eng
land Va. LEWIS. % Gal. s5I,: Evans ys. Merchants
Bank RI Missouri: % Missouri, 34s; soc also
Osborne vs. the Bank Of United States Whea-
ton 7t2. m. ho,cerer. the cause Of ociion ,rere
doubtful IRE rould feel inclined, IL rier Of The
public interest iproired IN The issues herein 10
,ndint lin The SUIT and proceed nth the trial on the
merits
Applying the principles Of the case cited to
the one at bar. would say, in the language 81
an injury. and If there be no express law giving
a remedy he can appeal 10 tho equity powers OF
the curt for redress. Ii however. the
cause Of action were doubtful would feel in
olned. in view of the public interests involved
in the Issues herein. to maintain tho suit and
proceed with the trial on the merits"
| cannot conceive that the public interest in q
between two gas light companies
can be 80 great "a 1t s in the case at bar-indeed
no case has been presented to this court since
have had the honor Of being member Of it. in
vovng is ues of graver importance to the peo-
pie Of Louisiana. Besides the right of Mr. Mon
cure to the Office of State Treasurer to which
Tho plaRdjnpa admit he w;aa elnrtad nv major