New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-02-16
3RUARY l6. 1876.
COURT RECORD.
TUESDAY, FEBRUARY Is, 1876.
United States Supreme Court.

United States Supreme Court.
j. II. Kennard, plaintiff in error, vs.. the
State Of Louisiana, ex rel Philip Hickey
Morgan.-In error to the Supreme Court Of
the State of Louisiana. October term, 1873
MIR. Chief Justice Waite delivered the
OpiniJ IN of the court.
The sole question presented for our CON
sideratiou in this case, as stated by tho
counsel for the plaintiff in error, Is whether
the State of Louisiana. acting under the
statute Of January l3, 1873, through her
judiciary. has deprived K:nnard OF his
office without due process of law. 1t is sub
s.antia:ly admitted by counsel in the
if it has been done 'in the due
course of legal proceedings, according to
those rules and forms which have been es-
tablished for the protection of private
rights" We accept this as q sufficient
d. finition of the term "due process OF law"
for the purposes of the present case. The
question before us is 60. whether the courts
oelow having jurisdiction OF the case and
the parties have followed the law, but
whether the law if followed would have
furnished Kennard the protection guaran.
teed by the constitution. Irregularities and
mere errors in the proceedings eau OILY be
corrected in the State courts. Our author
ity does not extend beyond an 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 proceedings were
had, and determine it's effect.
l. Was entitlt d, "An act to regulate pro-
ceedings in eetAtions between persons
claiming q judicial Office" Section one
provided that Sin any case in which per
son may have been appointed to the office
of Judge of any court in this State, and
shall have been confirmed by the Senate
and commissioned thereto, such
commission shall be prima facie proof OF
tue righ. Of such person to Immediately
hold and exercise such CtIice."
1t will thus be seen that the act relates
specially to the judges Of the courts OF ths
Safe, aud to the Internal regulations OF
State in respect to its officers.
The second section then provides "that If
any person, being i.n incumbent OF such Of
| fee, shall refuse 10 vacate the same aud turn
the same over % the person SO commission
ed, such person 50 commissioned shall have
the right TO proceed ny rule before the
court Ut competent jurisdiction, to have
himself declared to be entitled to such
office, and to be inducted therein, such rule
| shall be taken con tradctOrlly with such in
| cumbent, and shall be made returnable
within twenty four hours, and shall DO tried
| Immediately without jury, and by prefer
| ence over all matter or causes depending IN
| thereon shall be signed the same day Of
rendition
There is here no provision for a technical
| 'scitatiOn," SO called, but there is in effect
| provision tor d rule upon the incumbent to
show cause why he refuses to surrender bis
office and for service OF this rule upon him.
| The incumbent wae, therefore, to be for
mally called upon by court IF competent
| Jurisdiction to give information 10 it, in an
/ nd
authority by which he assumed to perform
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 II
| the duty of the court to require this return
| to be made within twenty hours hours, and !,
| placed the burden of proof upon him. But
| i, required that he should be called upon to
present his case before the court coull pro
| ceed to Judgment. He had an opportunity
| to be heard before he could be condemned
| This was "process," and when served 1t wal
sufficient to bring the incumbent into court
! and to place him within its jurisdiction. lI
this case it is evident from the record thai
| the rule was made, and that it was in some
form brought to the attention of kennard
for on the return day he appeared AT first
instead Of showing cause why he refused t.
vacate his office, he objected that he haC
not been properly cited to appear, but the
court adjudged otherwise. He then made
known his title to the office, in other words
he showed why he refused 10 vacate. Thii
was, in effect, that he had been commits
stoned to hold the office till the end OF thu
next session of the Senate, and that time
had not arrived. Upon this he asked a tria
BY jury. This the court refused, and prop
erly, because the law under which the pro
ceeuiugs were had, provided in terms tina
there should be no such trial. He theI
went to trial. No delays were asked excep
such as were granted. Judgment wal
speedily rendered, but ample time and op
porrunity were given Tor deliberatiOn. Du'
process of law does not necessarily impl,
delay, and it is certainly no improper in
reference with the rights Of parties to Civ
such cases as this precedence over the othe
business in the courts.
The next stctiOn provides for an appeal.
| True it must be take n within one day afte
the rendition of the Judgment and is mad
returnable TO the Supreme Court withir
two days. The proceeding on appeal wal
given preference over all other business il
the appellate court and the judgment upor
the appeal was made final after the expira
ZION Of one day. Kennard avsiled him sci
of this right. He took his appeal and wa
heard The court considered the case anC
gave lie judgment.
From this it appears that ample provision
has been made tor the trial OF the c, ntesta
ton before court of competent juIiscid
tiun-tOr bringing the party against whom
the proceeding is had before the court an,
notifying him of the case he is required t
meet; for giving him an opportunity to b.
heard in his defense; 10. the deliberatiol
aud Judgment of the court; for an appea
from this judgment to the highest court o
the State. and for hearing and judgmen
there. A mere statement of the fact
1 vvyfh
all the constitutional objections urge'
against tho validity Of the act. The remed!
provided was certainly speedy. but it coul'
o..ly be enforced by means Of orderly pro
ceedings in court of competent jurisdic
ton in accordance with rules and form
established for the protection of the right
of the parties. Ia this particular case tn
party complaint G not only had the righ
to he heard, but he was in fact heard boil
10 the court in which the proceedings wer
originally instituted and, upon his appeal
in the highest court Of the State.
The judgment is affirmed.
superior District Court.
William C. Bertus vs.. B. F. Flanders
liqu;dator Of the New Orleans Mechanics
Suciety alleges he is q credito
of the company as holding q note of Apr
8, 1872, signed by John Mcintyre as pres
dent, secured by mortgage on all the prop
-rty of the society; gives full description
OF the property; alleges the original deb
was 81! ,65 "a, and asks judgment TO-
$6637 "A.
! Ii. Mvhnert va. G. Defarges ct al.-Th'
! parties were partners with C. G Reben
tiscn, under that frm name. Petition
alleges the firm has gone into liquidation
that defendant attempts to interfere wifi
the settlement and prays that he be re
s:rained. Injunction issued on bond O.
$1,000.
Citizens' Bank va, w. C.. Madden ct al
On note OF $3.50 ProvieiOnal seizure Of