The Louisiana Democrat. [volume] (Alexandria, La.) 1845-1918, 1877-11-28
SUPREME COURT OF THE STATE
OF LOUISIANA.
CLERKS OFFICE, New ORLEANS,
November 10, 1877.

State of Louisiana ex rel. E. G. Hun
ter, District Attorney, vs.. Judges
of the 9th and 18th judicial Dis
tricts.--No. 6742.
Mr.. Chief Justice Manning deliv-
cred the opinion and decree Of the
Court in the words and figures fol-
lowing, to wit:
An indictment for murder is await
lug trial in the Parish of Rapides.-
P. M. Richardson is the party &C
cused, and he is the brother.i nlaw
of the Judge of the District in which
is that Parish. The District Attor
ney, proceeding under Section l06s
of the Revised Statutes, gave notice
to the presiding Judge that he was
;ecused in that case, and also that
the Judge Of the Seventeenth Dis,
trict, which adj oins the Ninth, will
be called on to hold the next term OF
Court in the latter. He also gave
notice to the Judge of the Seven
tenth District that he would be re-
quired to hold that term. The two
Judges refuse to interchange, and
the prosecuting officer has taken this
proceeding by mandamus to compel
them to comply with the require
ments of that Statute, which is, that
it shall be the duty of the Judges
thus notified to interchange accord
ingly.
The Judges answer that the law
requiring their interchange is uncon-
stitutional, and the Judge of the
Ninth District also pleads want of
Jurisdiction, in this to. wit: that this
Court can issue mandamus only in
in aid of its appellate jurisdiction,
and that jurisdiction is restricted to
those cases in which the punishment
of death, or Imprisonment at hard
labor, or a fine exceeding three
hundred dollars, is actually imposed.
The criminal proceeding is not be-
fore US now, but an original process,
the object of which is to ascertain
whether Judge wrongfully refuses
to perform what is alleged to be his
duty, and to compel its performance
if that refusal is wrongful. The al
legged duty is to interchange with the
Judge of an adjoining District for
the purpose Of trying, or having
tried, prosecution for murder, and
ourinquiry is confined to the question
of whether the law which imposes
that duty upon him is constitutional.
The exception to the jurisdiction is
overruled.
The Constitution prescribes that a
Judge shall select lawyer to try re-
cused cases in which he is not per-
sonally interested, and when he is
thus interested the Parish Judge
must be called on to try the case if
it be in the District Court. Article
80. All the cases in which q Judge
may be recused are thus divided into
two classes, the ingredient of per-
sonal interest being the distinctive
feature Of the one, and the want of it
that Of the other. 1t seems to have
been the special object of that Arti-
Gle to contrive a mode by which the
cases, in which Judge is refused,
might be speedily tried and without
the delay and Inconvenience conse-
quent upon an interchange of Jud-
ges. There is a careful omission of
any provision touching such inter-
change, although it bad been of fire.
quent practice under the Constitu-
ton of 1852. The revisal of the
Statutes made in 1870, reproduces
the law of 1858, which dictated to
the District Attorney the course fol-
lowed in the present instance, and it
is argued by him that the insertion
of that law in the revisal, with Arti-
Gle 80 of the Constitution of 1868 in
force, shows that conflict between
them was not then supposed to exist.
Nevertheless we think they are in
conflict, and that Section 1868 of the
Revised Statutes must therefore be
declared null.
The criminal prosecution Of the
Judges brother in-law is not case
in which that officer is personally in
terested in the sense in which those
words are used by the Constitution,
and therefore he must select a law
yer, who has the qualifications re-
quired for Judge of his Court, to
try the case. The District Attorney
very aptly inquiries if pecuniary in
terest is sufficient and proper rea
son for depriving a Judge of the lib
erty of selecting lawyer to try a
Il