The New Orleans Democrat. (New Orleans, La.) 1875-1876, 1876-05-19
MONCURE vs.. DUBUCLET.
SYNOPSIS or THE DECISION OF THE
SUPREME COURT.
The Returning board the supreme Law
Of the Land.

No Ga2s. State OK rel. John Q. Mon
cure. appellant, VS.. Antoine Dubuclet.
Appeal from Superior District Court,
parish Of Orleans.
Ralator alleges that he and defendant
were both candidates at the election
held on November 2, 1874, for the Office
of State Treasurer, to which office he
was elected by q majority OF the votes
cast by the legal voters OF tho State;
That defendant was illegally declared
elected by the Returning Board. which
refused to count REALTORS majority In
the parishes of Bienville, DeSoto, Grant
and Winn, and committed various other
Illegal acts in the canvass, rebound
ing to his injury, He prays
that defendant be cited, and that
a mandamus issue commanding
the board to assemble and canvass the
returns Of the aforesaid parishes. and
promulgate the same, that jury be
called to determine tho other issues, and
that the commission rs treasurer be de-
creed to have been itnprovidently issued
to Dubuclet, relator being entitled to
said office.
The Returning Board responded by
exception on these grounds:
1. That there is in the felator y suit an
| improper joinder Of parties md an i'm.
proper emulation OF different causes OF
/ action.
.. That there il no cause Of action set
up by relator's petition against THESE
respondents.
3, That there is commingling OF al
/ legations in the petition, leaving It
doubtful what cause Of action the re-
/ lator seeks to prosecute, the petition
| being vague and uncertain.
/ 4 THAT if the object be to contest the
| election Of Antoine Dubuclet, the re-
spondents have no interest In the con
test That this Court Is without Juris-
diction. rntiOne mdteriV; that the law
does not authorize the condensation Of
the election Of State Treasurer, ana II it
did. which Is denied, the action IS pre-
scribed by ten days.
| :. That there is no cause or action
against these respondents whatever
may be the suit that Courts are with
out jurisdiction to inquire into their
action as q Returning Board. or to pre-
scribe their course OF action; that the
law prescrbes their duties. and their
acts are limited by their sound discre-
ton under the law, and their findings
are not subject to review by any court.
| Dubuclet filed in substance the same
exceptions. with the further one that II
/
| intrusion act, then the petition sets
| forth no imminent Of title in relatOr
which authorizes proceedings under
| that act, and that no cause OF action Is
set up.
The exceptions were sustained and
! the suit dismissed.
| The contesting of an election must
necessarily be conducted in conformity
with some law authorizing IT. We no
where find that the law making power
has referred to judicial action contested
elections, involving an inquiry into oil
the details Of an election, except by the
act Of 1855, which cannot apply to the
present case, as it provides only for con
testatjops OF elections held for parish
and ward officers But il this act OF 1855
did apply to the case at bar, then the
prescription Of ten days provided there
in would be fatal to relator. Besides,
from the judgment rendered against
him, he could not, under the act. have
appealed. If relator claims that the
act OF December 10, 1872, creating the
tribunal Jurisdiction, then, il that
act does not fix other terms OF
prescription for, and other formalities
or proceeding i'm such cases, articles
4ls. 141D and 1921 II. s. would apply and
prove equally fatal. The functions OF
the Returning Board ceased when they
made the official PRONUNCIATION of the
results OF the election, and it Is beyond
the power Of a court by mandaInus to
require the me4nbers OF the board to re-
assemble; under no circumstances could
a mandamus compel them to moro than
perform their duty, the court being pow
erless to direct hO,r that duty should be
performed. 1t is clear, however, that
the act creating the Superior District
Court does not authorize the contrasting
OF any election not previously author
lied by law to be contested.
But relator seems to rely chiefly upon
article ten of the constitution, which
declares that "all courts shall be
open. and every person, for injury
done him in his lands, goods, per
son or reputation, shall have adequate
remedy by due process Of law, and JUS
tice administered without denial or I'M
reasonable delay" Conceding the ap-
pIicabilitv of this article to cases grow
ing out Of contested elections, in seek
ing the adequate remedy due process OF
law must be followed, and this process
is not prescribed by the article. 1t is
for the Legislature to prescribe the due
process Of law, and we no where find
that it has provided the mOdus Opernnd,
! to be observed in having the returns Of
the Returning Board corrected il enron
eous or fraudulent. The courts are
open, but the contest which involves
the rebuttal Of pripa fncie evidence 81
the correctness of the returns OF the
board - their PRONUNCIATION NM is one
which is to be made according to law. Ii
the law -maker has omitted to enact
the law under which such proceedings
must be conducted, the court can
not supply the omission. Without pre-
: scribed rules established by law courts
have no guide by which to proceed IN
their investigations OF litlgated CUES
tions brought before them 1t is, then
a fallacy to say that courts can assume
to determine controversies not referred
to them and in relation to the investi
cation Of which there are no established
rules and principles required by law tt
be followed.
Judgment affirmed.
rrl,o ohoico ~ William n Rarn,ln FIR