The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-04-11
CONTES TED ELECTIONS In LOUISIAN.
Supreme Court Of Louisiana.
NoNcupE vs. DuBucLET
Mr.. Justice wyly, dissenting.

Mr.. Justice Wyly. dissenting.
Mononre alleges that he was elected State
Treasurer, but that the Returning Board, by re-
fusing 10 canvass and count the votes at certain
polls and in certain parishes. aud by rejecting
others after investigation, 80 changed the resslt
ns to make ID appear that Dnbuelet received
majority of the votes, and 30 declared, aud Dubu-
elet was thsreupon commissioned He charges
.hat the canvass was not fairly made atd the
conduct Of tho Returning Board WAS arbitrary
ana fraudulent. The petition WAS dismissed on
the exception that it disclosed no cause ol acton
and the court was without jurlsdeaon to inquire
into the action Of tho RETURNING Board, that its
acts limited to its own discretion, and 1ts
findings are not subject to ravlew by any court.
The doctrine that the Board OF state CANVAS"
se.s, or the Returning Board, 10 vested with the
power contended for by defendant, and that its
| arbitrary aud fraudulent 1t may be, 10 doctrine
that IL not supported by net 9s Of the acts of ls2
the law organizing said Returning Board NOR
is IL authorized by any law OF this state. On the
contrary, the law creating the Hsturning Board, |
and providing for tho CANVASS OF the votes after |
an election declares that "the returns ef tbe oec-
| tiops thus made aud promulgated shall be Wunn
facie evidence in an courts Of justice and before
all civil officers. nnth set aside after contest &C.
cording 10 ta,o If the right OF any person named
therein to hold and exercise the Office to which no
shall by such return bo declared oec ed.
What does this language mean? u means
what IL says, not that the findings OF the Returning
| Board are conclu i've, but that they are only
priDd .fdeie evidence in all courts OF justice;
s'uutH sci aside after contest noooratnyf 10 ldo.
| Tho intention OF the law-giver IL not obseure.
It. clearly onntemplates a review Of the action of
| the Returning Board by the courts whenever
com plant Is made by party Interested that the
| CANVASS made by such board is Unfair, arbitrary
or f,audulent aud that lis injurious TO the COM
plainant.
There Is no doubt the statute In question was
passed in reference to article 10 OF the conslitu-
ton and Of tho laws u the State giving remedy
where there is q wrong.
Article 10 Of tho constitution declares that:
GAN courts shall be open, aud every person Tor
injury done him In his land, goods, person or
reputation, shall have adequate remedy ny due
process OF law, and justice administered without
, denial or unreasonable delay"
II Moncure was elected State Treasurer by
majority cf 1916 votes over his opponent, Antoine
Dubuclet, and Was fraudulontly eoubted out by
tho Returning Board, rs he alegeg in the peti-
ton, land this averment must be taken aB true
for the purpose Of trying this exception that there
D is no cause Of action,) he has been upJusty de,
prived OF his Office his rights have been invaded
aud by article 10 Of the constitution the courts
, are open to give him an adequate remedy by
| due process OF law, and justice shall be adminis-
tered to him "without denial or unreasonable
y delay See also n An. 1888.
had occasion In my Dissenting opinion IN tue
case OF Bonner Va. Lynch, rs 40. 267, 70 argue
this question very fully, and cited authorities
from nearly all the States of the Union, showing
= returning board, is not beyond the reach OF ju
dcial ipaun v, that the duties OF such board are
= ministerial and can be reviewed by the courts. L
will not repeat the argument, but simply refer to
my opinion in that case IN suppoft Oh Inc posion
q | take in this.
e Under the constitution OF this State the Cen
eral Assembly could not, II 1t dohired confer Jn
/, dicial power on the Returning Board, because
:, article rs provides that "the Judicial power sha
= be- yested in Supreme Court, in District Courts
in parish courts and In Justices OF the peace"
J. In my opinion The petition discloses eanse o
l. action and the canvass OF the Returning Board
u,lx.. - ,ttflfn al inIn
O the election by the people and not the certificate
a OF the Returning Board that gives right TO az
p Office / think the csse should be remanded u
- be tried on the merits. ,ou,
g contemplated review of the action Of the Re
T. turning Board by the courts, the General Assem-
l. bIy by oversight neglected to prescribe the form
e of procedure, and, therefore, this intention can
c not be carried into effect. 1t il sound rule o
, construction that where statute gives q r1gh
and fails to indicate the form Of the action TO en-
force it, the court will presume the law-gver Ill
" tended the right to bo asserted under the gen
Ie erA rules OF practice existing at the time; tha
Y, where no special form of action is mentioned y
n the statute giving the right, the law gyer intend
n ed the right to be asserted under the usual form
" OF pleading. ,,os.
ed in reference to article 10 OF the constitution
o. and in all cases where special form OF action
G. not provided, legal rights may be asserted IN Tn
at usuaI forms OF procedure in oar courts. In
)r beat evidence that the law gver intended no spe
"a cal form of action, tor cases arising under I'M
statute, is that such intention is not disclosed
the act and no special form OF action Is given. =,
/ will not Impute to the General Assembly Tn
lamentable weakness of giving a rlgnt an
q neglectng to furnish a remedy to enforce l
Nor do think it proper for thls court, lhveste
with Jurisdiction both OF law and equity, 10 pei
III init substantial rights to be lost Tor technical res
Id sons or to decline to protect citizen IN moi
L valuable right simply because there Is no statn
ne prescribing form for the action. In my opnloI
to il right exists, the courts OF this State beIn
in courts OF law and equity, can give adequate rei
70 as required by the constitution.
40 AND this was the opinion OF this court in the r.
lis cent case Of Crescent City Gas Light Company
New Orleans Gas Light Company, n An. 10y:
considering the question that came up in thi
. case, whether, where legal right Is snow
: there is remedy, this court said: "if thu amt
he is injured to the extent claimed and is c. ppit
es by the loss Of its credit 30 as to Dc imp cd
nd carrying out it's contract with the State. oy
pretensions and claims OF defendant, dedt
on the act OF March |. 1850, which is all ed
be unconstitutional and void, the question 8. CT
complains and give the relief prayed tor N VI
petition? We think that 1t can" =,
After quoting article 10 Of the constitution, Il
AZ Al court uses the following language: "lt is urge
however, that this Is not one OF the actions me
,he toned in the Code OF Prsctce. The authors
tn our law have not seen fit to prescribe forms
ne. every legal demand, and they have not catalogu
in the Code of Practice all the actors that m
be brought in our courts; rs perhaps,
,ue that they hare not done so, for by the o!ss'om
me form, Substantial relief IN some cases na1ght De
aP' yaded In our opini
plaintiff has shown an injury, and If there be
express law giving remedy, it can appeal to t
,ls equity powers OF the court for redress. Revis
m Oode. article 81, Marbury vs.. Madison, Crane
ao- TT; Dodd vs. Benthall, Heiskal, 602; State
Patterson, N J. Law, 1885, State vs.. jersey Ci
is 81 N. J. Law, 800; story's Equity Jur.: p
Browns Legal Ma1ims, lsO; Hiiiiard on ipju
d,s tions, $50; England vs. Lewis. 25 Cal, =
rs ~ Evans vs. Merchants Bank, 81
,rts % Missouri, 34s. ses also Osborn
ere the Bank OF United States, Wheat
'col 742. If, however, the cause Of action "
be doubtful we would feel inclined, in view OF