The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-06-02
TIE CERTIORARI CASE.
JUDGE wHTTAKER ORDERS JUDGE
MELTENBERGER I'd ENFORCE
ACT NOD.
|gze Gives For This Extraordinary Mandate
Various Reasons which Are Pub-
EIsaed Below.

IiSIsed Below.
Yesterday Judge Whitak or read tho following
decision:
Superior Criminal Court for the parish Of
Orleans No * W stat" OK rel D. D. ko [ w.
P. Saloy wa9 arrested May Is. 1873. by J; B.
Kelly. captain in the Crescent CITY Police
force for having offered for HHl0. without license
from the company authorized by law. lot
terry tickets in n lottery TO be drawn out OF the
State of Louisiana; all in violation OF act No.
of tho Legislature Of 1874 Tho complaint
against Snloy having h""n Hesi gned for hearing
on Saturday May IL l97s on nat Gay the ; eknm
tore Recorder Mitenborgor It IL alleged TINT
,althOuRh duo proof wap made that Sal0y hnd
violated the provision. Of act No Of 1874. the
Recorder of the Second Recorders Court refused
to enforce tho PROVISIONS OF this net. because he
4 believed that net No TO- passed upon the ,me
4 day, supprsod~d Mt No. 9, and awarded on, ties
accused of the OffeHRo charged against SalOy.
8 the benefit Of trial by Jury,
HI The recorder. aching upon this opinion CON
u cluded TO ignore entirely act No. . In future.
and declared that he had determined to dismiss
che affldavi s. before him but previous 10 80 do
ing would allow the state sufil lent time, to
make affidavit against the accused for violation
Application was mado to this court for u writ
u of certorari commanding Recorder Miltenber-
ger to produce disttnctly and openly before the
court on Monday. May 81, 1913 ut 10 o'clock Of
that dHy. the record and proceedings, and all
things touching them. In laid cause and on
joining the recorder to proceed no further
y therein until Judgment WIS pronounced upon
a this writ Of oertiOrari.
IL Tho writ which 1t ado rCturnaho May q.
1878, was rPgula' - served on Recorder Milton
berger on May 20, 1878 tOg, thor with tho notice
Il of said writ. usually used in sub casos.,
## Notwithstanding tho order OF the court 1t WAS
suggested that Recorder Menberger on NAV
% 1873, dismis ed tho affidavit against EaOy
and discharged h m
A rule was issued commanding Recorder Mil
I'll senberger to show cause on MoniAy. May n,
1873. why be should not be punished Tor CON
s. The certirrari in this case was applied for on
the ground that in n criminal case whore pro
ceedings were authorlzed and regulated by
II astatute, were summary and We're different from
II 1.-THE course Of the common law. and whore
AH neither appeal nor writ or error could lie the
4 II 3corder exceeded his JurSGt0 ion. proceeded.
al did pail able inlu tiCe be- ween the parties.
The return to the writ, consisted In the ding
tho original papers from the second RecOf
Z r., Court, and Of IN answer entlti%d mi Return
10 rule for cer'iorari and contempt" This iaSI
paper urges that the writ Of cs, tl"rart i I'M
{ known to the American constitutions and more
respectfully to the cons tuition ana laws Of l. ruts
lana that the only court Of general criminal
jurisdiction in th,s pariHh is the First District
Court; that the light OF tn" Surerior Grimm VI
Court to issue WI Is OF man amus and hll other
these are necessary "r iucide a to the exorcis 0
or enforcemert Of liz Ju isdietton: that The
oflenso crented by act No. 9 il net In nd
w within the special grant 81 JIrisdi ton to the
Superior Criminal Court. ANA tn re'ore not cog
nizabe by tho IudR, III Roof; that tho recorher
vi of the Second RocUrd"r'- Court IL prohibited by
art. "a of tn" r"nBt tuition from assuming jnriS
diction over onRe4 rising und"r, CT No . Of 1874:
ana that beOTB the ~ mo writ OF ctrtl
oreri by this court sally had been dis harR"i.
4 1t is admitted Ihn' due proof was made of tn"
II violation bV Sll4y Of section Of act No; g. and
the opinion Of h. recorder; rend red May II.
and the indorsom"nt nImdo by Il III on the nfli-
davft against Shl0y. wer" cOnsth"r''d filed as
part Of tue return to the writ IF C"rtiOrhri.
Tho present prncee ings by corturaI were
Instituted to have the err'r- complain d Of in
the actions Of the recorder Of tho second Il "
Il eordCrs Court corrected IN due mnnner. anu to
secul full and speedy justice to tn" p!lt tics In
the cause THIS court, ik"th Supreme Court
hand the oth"r diatriC' courts, is created by writ
ten law; its jurisdiction Is deil"ei by written
law, and 1t cannot tranSc"ud that JurlS fiction.
4 This Is not court OF common laW ltiS4Goq t
constituted by the HtHtu 9 OF 1874 by which Its
powers are defined. 1t is not pretended
that this court has jurs licti'n over every
case from high trohsou down T. the most
trivial breach of the peace Every exer-
else of lqri-dIction GU It's part must b."
for such purpose by legtsl ttivs will. This is
IL not court Of extraordinary aud unltmitcd Juri5
diction: on the contrary it, Jurisdthion an
powers are defined and circu n9cribnd by the
act which called it into exi-te CO. 1t can try
and punish accused pHItte+ ONLY Ia those cases
j. l24 Of 1874 The aft native hes rlptOn OF is
jurisdiction 10 try AMI punish IN ,e7 Implies
IN 9xeGSgn % any cns IN I9f
Vito the jurisdiction vested III this court for h"
ftrial and punishm mt of these enumer tied Of
n lenses. 1t enjoys tho benefit OF nIl laws reHiye
q to proceedln e In or the jurisdiction OF the
First District Court, or tho judge thereof. i'll
matters appe tanning to the trl j and disposl-
powers and duties IT a c ,uct Of highest Grim
inal jurisdiction ut com n"n law iM En-l and
the court of highest criminal 1rt-dlct ion at
Il common law IL the Court a. Kings Il 'n"h in
nearly every State Il the Union the Supreme
Court By til" net Of 1874 tt il Gle r tha those pow
ers which are Inherent IN the high courts "t
common law OrIgt are expressly given to the
ii Superior Criminal Court.
There Ia q broa lis inrllon bewaen jur3dto-
zion to try cause Hu 'W"r to issue certain
orders therein. This Gnur would have no jn-
q risdlctiOn over dem md by cr"dttnr bHoAuS"
such cause iS not OF ti0LH Wht N by ne
4 flrst section OF aGN No 1914 OF 1914 this court Is
n authorizoi 20 try. But If the Dor has been
Il arrested and conveyed 70 prison In u cori4nc,
with law this ri h IS tho y 'Wer to issue hH
d writ OF hGbeGs corpus an t. tnqnire int the
legality of tho deb = 'iet nti H.. 81 also, al
though the Ihird D. .trtrt G urt has no iurts-
dictiOu over cases whore the sum In c mt sta
ton ia less than $40 in Amnint, yet. IT su"h n
suit a Justice If III" uet'a should refuse TO h'ar
the party or hi4 WitneIa"S. r sh 'ul pronounce
n sentence without having cite defendant TO 40
pear that c mt would hnvn the 'w"r to is7u',
writ Of ceYtiCrGri to avoid tn" urCce'dlng' ~
The lower cuur,. and to direct the Judge thereof
to try the cause q i"W il ntUFMlty To law.
Code of Practice SG7 and A6L
A Supreme Court n - D)WAr ~ common
law to review tn ; orr 'eolt4<5 OF / 2l9rl "
4 such tribunals and To review hll gal decisions
Il made by them; IN | cert r.sri is tn regular
q nr0oess under which such errurs are IT, b AZ
Il aminnd and COrrrc sd. This writ Is not uu-
II known to Am 'r"An con 1tuton1. and more
Il especial to The Constitution and laws If Lou
isiana:" on tn 'ntrary. In tn9 'rnm0n law
States l. is / writ or s6ue At rHSb t; wal here,
In Louisiana it Is in evil II rt9 y. HX4aih a
Il and authorized III tWovo HrttcIes OF the COD OF
This court has all the POWERS Of a court Of
s Aha highest criminal comm n law Iurt-di :tlon.
and therefore has T. w r u review tue o. Oc g l.
Kings of inf 'rur tribunA r, to D 80 upon he'r
jurisdiction and to reyI"~ AL e" 'ieGisti tins
4erpOsed IN tn" argument HGAln-t the dcleG"-
fion of any such 'w"r- to this court is with
= out force. In act No. 14t u 1874 tn'r IL not
Sdopted any - ,etem or Die + DAVIS" | am
I unable consequently, to appreciate the app l.