The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-05-15
THE NEW ORLEANS DEMOCRAT, WEDNESDAY, MAY 49, 1878

gument 30 prove that selling lottery tickets
is not "a case arising under the police regula
| tions OF towns and cities" The selling %
lottery tickets, except by Howard's monopoly
Is a State offense, and II the Legislature car
give the police courts jurisdiction to try
such offenses and convict and sentence Of
fenders, 1t can with equal propriety give
such court the right to try larceny, for
gerry or any other crime and thus utterly
destroy the right of trial by jury.
| The recorders. we believe, assume that
they have no right to pronounce upon the
constitutonality of act No. 8, and that
though they regard it as an unjust and tyran
meal law, they are bound to enforce it In let.
ter and spirit. These gentlemen surely take
mis- taken view of their duty in this matter
Indeed, unless they are absolutely convinced
that act No. . Is strictly constitutional in
every feature they are bound to refuse tc
enforce it. The constitution Is the supreme
law of the land, and the judiciary, from the
lowest to the highest, Is bound to be gov
erned first and last by that law. Acts
OF the Legislature in violation Of that instrll-
ment are but as dust in the balances it is, in
force a law he knows or believes to be Ihcon-
stitutional. Especially is this the case where
the enforcement Of that law rifles the pockets
of citizen or deprives him OF his personal
liberty. But IL the recorders desire positive
authority to sustain them in pronouncing
against act No. 8 OF 1874, we point them
to the last section of the article of the consti-
tuition above quoted. That section seems to
have been especially framed to saeredly guard
the liberties of the citizen. The constitution
properly regards personal liberty and prop
erty Us sacred rights of which man can
only be deprived after a trial and conviction
by jury in the higher courts. Con-
seouentlv. iii comforting certain powers
upon police courts it lays down q
line-a sort of dead line-whici the magis-
trate dares not cross. I'm any case" says
that instrument, where such officers shall
assume jurisdiction over other matters than
those which may arise under police regula-
tions or under their Jurisdiction as commit
ting magistrates, they shall be liable to an
action for damages In favor of the party in
jured, or his heirs, and rerdict IN faror of
the party injured shall, ipso facto, operate a
racation of the office Of said officer" Here
the recorders have ample authority, nay,
an express command, to refuse to enforce
any such extraordinary and tyrannical act
as the one under consideration. If either Re-
corder Miltenberger or Recorder Smith shall
fine or imprison any of the parties arrested
under act No. 8 Of 1874 he will render himself
liable to civil prosecution for damages and to
expulsion from office. 1t is unquestionably
their right, therefore, to use their discretion
in passing on these cases. and it Is their SOL
emn and sworn duty to release the arrested
parties II they believe the law Is vioIative OF
the constitution.
To Judge Miltenberger, we especially ap-
peal. We ask him to examine this most dan
gerous unjust and tyrannical act, and to re-
fuse to enforce its Obnoxious provisions If he
can conscentiously do 50. The people of this
great city join In this appeal. He has the op-
portunity now to render great service to the
community, and il he does it he will receive
the applause and gratitude Of the people
throughout the State. We have no interest
in any of the parties mentioned; we are
not acquainted with single one of them.
But in the public interest we desire to see
this iniquitous and disgraceful act nullified
by our judiciary. We address ourselves di-
rectly to Recorder Miltenberger because he
will be first called upon to act in these cases
because we know him to be a fearless and incor-
ruptible man and official, who will discharge
his whole duty as he understands it, In our
opinion, and in the opinion Of the great mass
Of the people of this city, the highest duty he
can perform and the greatest service he can
DO the country is to pronounce this law I'M
refuse to enforce it, and let
hose who bought it from a corrupt legsla-
lure and in whose interest it was was passed
pursue such remedies as they may be able to
discover.