The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-11-18

Gontesting the Ottit q OF ADMINISTRATOR OF
Waterworks and pra ying for an injunction
to forbid Chevalley to- take possession Of the
office:
Sixth Dfsti let Court.
State ex rel. E. T. MAJ ming VS.. Chevalley.-
Plaintiff, in q very le ngthy and detailed
petition substantially cL aims title by election,
to the municipal office OF Administrator OF
Waterworks and Public Buildings, though
the returns of said elect on as promulgated
Of votes cast for his competitor, E. r.
Chevalley. He charges the result thus
ascertained as being false. the true result
PHng as he o Gsms hg 9nn m con eesf2 bs
election Of said CheValley and prays for an
Injunction restraining the latter from eyer
cising or attempting to exercise the functions
Of the office 10 question, and a like Injunction
on Jas. D. Edwards, the present incumbent,
from surrendering the control OF the Office TO,
the said Chevalley.
AS d preliminary to the question Of the
right of the court to issue the mandate Of in
junction, it is necessary to determine under
what law and by what method titles to-
municipal office are to be determined.
Plaintiff urges that the contestation can be
| maintained under the provisions of the act of
| 1866 as reproduced in the Revised Statutes OF
/ 1870, sections t4l7-1435, amended by act
No o. regular session of 1877. It is unneces-
sary for the present purpose to determine the
| question, which has been raised In argument
| Of the Revised Statutes invoked
| have or have not been abrogated by
subsequent legislation. Assuming them to be
| in force we find that they provide q mode of
in the parish Of Orleans, besides members of
the General Assembly, to wit: Sheriffs. coro-
ners and clerks; the amendatory act Of 1877,
including also justices Of the peace. No men
| tion is made OF any municipal office whatever.
| 1t is also contended by plaintiff that
while municipal offices are not nom
| inally embraced in the law which he
| invokes, reason and the nature of things
confer upon court OF general jnris-
cate the claims Of those who present titles to
| exercise the functions of municipal govern
ment. Without accepting the full rigor of
| the doctrine enunciated By. Judge Spofford In
| the case Of the State Of Louisiana VS.. O.
s. Rosseau, and reaf1irmed in the deplorably
memorable case of the State ec TeIatione
Moncure VS.. Dubuclet, it is safe to hold that
unless to avoid O. fragrant denial Of Justice our
courts will not stretch an implication to the
extent required by the plaintiff; but he very
strenuously argues that rejection Of the
views maintained by him would lead to the
monstrous anomaly of right without a
remedy and permit the usurpation Of power
not be prevented or checked. There is
exaggeration in this view of the subject
| The law-maker has provided a remedy for
case like the present one, but for reasons
|
flowing from the imperative necessity OF
avoiding an interregnum OF municipal gov
ernment even at the risk Of some minor det-
riment to both public and private right, he
has provided another and a different remedy
| through the instrumentalities pointed out
| in articles 867-873 of the Code Of Practice
| The writ Of quo lra1TG1eto or mandate to pre-
vent an usurpation OF office, affords ample re-
| lief to the complainant.
| 1t is not one, as cOntended by his able coun-
| sci, left to any citizen In general who may de-
sire to denounce and prevent usurpation OF
power, but it is one specially framed for the
vindication Of the rights Of those who, by
| usurpatiOn, have been deprived OF municipal
office.
It was 50 held by the Supreme Court years
ago. in the case OF the State of Louisiana VS..
Benjamin Mason, IA Ann $40. ''It appears
reasonable" says the court, "that no one but
person pretending to have g. right to an
office should be permitted to contest the right
of the incumbent to that office; If each citizen
be entitled so to do, then hundred or q
Thousand Writs Of quo D0rraeto could be sent
out"
The plaintiff Manning, has clear and un-
deniable right to resort to the writ Of quo
avdYrd,ato, and il the allegations made by him
are verified by proof, there will be found in
the armory Of the law more than one weapon
| by which he may strike the Wrongdoer and
vindicate his rights.
| After full and careful examination of the
law and precedent, [ have been led to the
| conclusion that he has mistaken his remedy,
and that an Injunction does not lie; it is re-
| fused