The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-05-22
SUPREME lOURr DECISIONS.
MONDAY, May 81, 1877
Present: All the Justices.

by CHIEF JUSTICE MANNING.
No. e35g--City Of New Orleans We. New Orleans
Canal aud Banking Company, appslant.-Re-
hearing granted.
No. 645g--succession of O. II. Marc, on oppo-
sitions of Gayafre ct al, appellants. airing
granted.
No. biT7--Samuel Lawson w. Geo. L. Kouns
and VIM. Moran. appe llants.-- hehearing granted.
:. No 662s-Frank Mayeur vs. D. Bloomfield u
Co., appellants. Rehearing refused.
No. 6g3S-Ohafles A. Conrad We. Jos. Patzelt,
Jas. jackson intefvenor and appellant.-He,
hearing refused
No. e656 The State OF louisa 10 en- rel. Allen
Jumel, Auditor, ETC., vs. Geo. b. Johnson, appel.
lant.---Appeal from the Fourth District Court,
parieh OF Orleans.
Allen Jumel, the Auditor OF Pubic Accounts Of
this State, alleges that Geo b. johnson refuses
TO deliver 10 him the keys. archives, books, pub
Lie records and papers belonging to that Office,
and prayed and Obtained mandamus to compel
their delivery, which was issued In the aterna
tive form ON the 27th day Of April of the present
year.
Before filing any answer, the respondent pre-
scented petition for the removal Ut the cause
from the Fourth District Court Of this city to the
Circuit Court Of the Tilted states, and rendered
q bond In accordance with the act OF Congress OF
March 3, 1876. The Judge refused permission to
file the petition aud bond, and bill was reserved
10 his ruling.
The respondents epuuael argue before us that
The reception OF the petition for removal aud &C.
complaining bond was not optional with the Judge
TO whom ii was presented. nor was he at liberty
u cnnsider whether the allegations If the petit
tion justified the transfer OF the cause but that
the reception and filing oil the petition was mat
ter OF right OF the respondent, aud the transfer
was compulsory as soon as II was filed. The po-
siaon 10 broadly stated in their brief that such
filing ,pso fdcto transfers the cause to the United
States court, and that court alone can consider
aud determine whether the petition and bond are
sufficient to authorize the transfer. The authority
Of Dillon IL quoted AZ sustaining this position.
IT, l. sxEtf
act Of Congress does not support it. That enact
ment IL M follows. "i1hat whenever either
party entitled 10 remote any suit y
shall wish to renlove such sui from state court
to the Circuit Court OF the United States.
he may Ale = petition in such suit In such State
court, and shall make aud file Herewith q
bond, and IL shall be the duty Of the state
court to accept said petition aud bond and pro-
coed no further III said suit"
The duty OF the State court IL TO accept the
petition and bond. and to proceed no further IN
the cult, whenever party thereto, who II emit.
tied to remove 1t. sha present them. But what
presented by = party who is not entitled to re-
move the suit2 And how shall the court dis
cover whether it's DUTY IL to accept or reject the
petition. to proceed with the cause or to stay pro.
party presenting the petition aud demanding the
trAnsfer 10, or IL not, entitled to remove it7 The
order Of transfer presuppose an inquiry into,
and Judicial determination upon, the right OF the
il made the State court cannot know whether the
applicant for the transfer Ia entitled to II, and
until the court does know that fact, IL should not
judicislly determine that the transfer shall be
made.
Upon the refusal OF the court to permit the
petition for transfer and bond to be filed, the
respondent answered. setting up title to the
office Of Auditor, averring that he vas elected to
that Office on the 7th OF last November, and was 60
declared by the Returning Officers, and waa COM
missioned by the Governor, and has qualified
and has s'acted as Auditor until about the 25th Of
April of the present year, uslAn his office was
under the authority OF Francis r. Nichoes,
Governor OF the state of Louisiana, without any
legal or rightfal authority, by which unlawful
acts he has been prevented from discharging the
duties Of his Office" He specifically denies that
the relAtor il the legal and rghtful Auditor, and
prays that the writ Of mandamus be refused, and
The suit be dismissed.
This presents distinctly the il ne of the riEht-
..Sried in this form Of proceeding. A maudamus
will not issue to test the right TO m Office. That
doctrine is coeval with the origin OF the writ, and
has often been applied by this court. Iu stern.
bergs case, where he alleged title to the Office OF
sherf and applied for the writ to compei his pre-
dccessor TO deliver to him the room keys papers,
records, etc., belonging to it, immediate pre-
dscessore held that 1t the Office which was in
dispute, the right to which could not be inquired
into under an application Tor mandamus;
but 1t was the room. books. papers, Etc.,
belonging to that office, and the court mace
the writ peremptory. And thi. ru ing
is founded upon the express provision 81
our Code which permits msndamus to issue TO
public officer to compel him 10 deliver to his
successor tho papers and other eff cts belonging
to his office.
When the respondent, in his answer to the rule.
presents an issue that is foreign to the use for
which the writ may be invoked, he can no more
he heard than relator who shall seek to test the
title to m office under the guse of proceeding,
the ostensible object of which il to obi ain possess
sion OF the books and insignia Of the office.
Such is the diction OF a recognized authority on
this subject. But il it De apparent to the court
that instead of proceeding whose object is only
to get possession of the books AMI insignia Of the
Office, the writ is invoked in reality to test The
title to tho Office and that the question of title is
the real point in issue. it will refuse to lend its
aid by mandanus." Il lie manifest, then, that |
the respondent cannot put ut issue the title Of |
The relator to the Office OF Auditor in this pro-
cAeding.
We hare postponed the consideration OF the
right 70 transfer the Cause to The