The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-01-26
THE RETURNING BOARD CASE.
JBDGE WHITAKER DECIDES THAT
THE CASE CANNOT BE
TRANSFERRED.
He REFUSES the Commission and Orders
tire Forfeiture Of Bonds and the
Arrest of the Accused

tire Forfeiture of Bonds ana the
Arrest Of the Accused.
In the case Of the State VS.. J. Madison
Wells ct els, merabers of the Returning Board
indicted foF forging and uttering as true the
returns for Vernon parish, Judge Whitaker on
yesterday genderest his decision, overruling
tss motion of defendants to have the case
transferred to the United States Circuit Court.
We publist,in full as follows, the able opirs-
ion of Judge Whitaker:
State of Louisiana vs. J.. Madison Wells ct
als.-.Petitioners have fled their application,
oassr VIE eSPlas al be reser ana
e9nr = bs 1esse ss to s The @ b fns e 4.
District Of Louisiana, and that this court suit-
pend all further proceedings in the matter; j.,
action prayed for must be taken, considering
the provisions Of section Gal of the Revised
Statutes Of the United States and the allega-
ti3ns OF their petition.
l. They represent that they. eonnot snforee
in the jadicial tribunals Of this State. in the
secured to them by the laws of the. United
Sta'tes preylding g for the equal civil rights OF
Q. They aver that under and according to the
laws Of the United states, guaranteeing equal
Civil TlSU3S 10 I'LL Oh b66 Qn1GSd
they, for the security of their persons. are en-
titled to trial by an impartial court and Jury !;
that in this case. by reason OF the prejudiee ex,,
against them, in the parish of Orleans and
throughout the State, because they were the re-
officers Of eeet9n for the election
because of their action in that capacity, and be-
ca.se they were Republicans in politics, and
and a o the of
election. out of which they say the proseeu-
tion in this case originated. In consequence Of
| all which. they declare that the deepest and
most vindictive prejudice exists in the law max
ing, and law administering authorities in this
State against them, and that as result thereof,
| they are informed and verify believe, they will
be denied their rights as citizens of the United
States and of this State, in this court, and be-
tore any Jury that may q be mpanneled in and
| this State, and that they will be unable to en-
| force their rights in this court in consequence
| OF the inadequate remedies to that end pro-
| vided.
B. They claim that act No. Sc, of 1877, in so far
| as 1t provides for the appointment of iury com
white citizens of the State and against the citi-
zsns Of African descent; that under said law a
feet and intention of said law is. and was, to ex-
| clude colored men Of African descent. and other
unprejudieed persons. from the Jury. and to
titloners, Kenner and Casanave, of trial by
| their peers. and forcing them to trial by q
men mem of their own " color and descent They fur
| ther say that by means of the machinery of act
No. Sc. artfully contrived to accomplish that
| officers connected with the court and the prose-
cutiou of this case, can actually and have sc
manipulated said law as to deprive the petit
lied a jury, under said law, for their trial SO
preiudiced that they, cannot have fair and
r hiry be a II by hs G2a pens
| the laws and proceedings for the security o
their persons in this case.
| 4. They finally aver that said jury law is In
violation of the constitution and laws of the
| United States and of the State of Louisiana
and Of the equal civil rights OF the petitioners
1t is held by counsel for petitioners that tbs
mere filing Of this application ipso fdcto divests
this court of any other authority in this case
than. to comply with their prayer under the
provisions of section GIL Of the Revised Statutes
Of the United States.
Under the act of Congress of March 8. 1875
authorizing the transfer from State courts tc
the United States Circuit Courts of suits of g
civil nature at law. or in. equity arising under
between citizens of different States, Judge
Drummond. q high authority in the United
States Circuit Court, Northern District Il Of mi;
Company, decided that this act authorized the
filing of petition and bond in the State court
out. Of term time that this act for the
says There must have been some object
in this change. We think it was to prevent the
btaI6 court 1TOUl pTOCe6ulDg Ill tlb Cast
after the proper papers were filed in the suit
with the clerk. There was nothing more to be
done in order to perfect the right" ITO transfer
A like opinion is expressed upon this point by
Judge Dillon in his Treatise on the Removal
of Causes from State Couits to Federal Courts.
Our Supreme Court. State ex rel. Jumel VS.
johnson, 29th An, $780, commenting upon the
opinion of Judge Dillon. say: We cannot % ap.
does does not support it. That enactment is as fol-
lows:
Court eae Of Of the United States. he may file
petition, in such suit in /. such State court
and it shall then be the duty OF the State
court to accept such petition and bond. and
dug o the sas court is to accept the
petition and bond, and to proceed no further Ii
the suit whenever party thereto. who is m en-
what is the court to do when the petition ant
bond are presented by party who is not, IN
titled to remove the suit? And how shall tht
reject the petition. to proceed with the cause. o.
to, stay proceedings until It has aseertainet
whether the parry the Petitl93n a1'
remove it? The order OF transfer presuppose
an inquiry into, and judicial Dissemination
upon, the right of the party to recover the cause
and until that inquiry is made the State cour
cannot know whether the applicant for th
transfer is entitled to it. and until the court doe
mine that the transfer shall be made.
The opinion OF the United States Suprem
, Court in Railway Company vs.. Ramsay n
Wall. 32S) would seem to have an importan
bearing on this matter. although rendered
under the law with reference to the transfer o
civil causes as it stood before the passage Of tn
act of Congress of March 8, 1875. Judge Dillon
in his treatise above referred to- says Of It. thi
decision mote, .. 32): The requisites. func
ton and effect of the petition for removal ar
tersely stated by the Chief Justice"
To obtain the transfer of a suit, the party de
string 1t must file in the State court a petition
therefor, and tender the required g security ecu
. Such petition must state facts sufficient t
entitle him to have the transfer made M =, Ihi Ihi
Court would have jurisdiction Of the suit whe1
transferred The one necessarily includes tn
other. IT, upon the hearing of the petition, 1t |
sustained By the proof the stats court can 9r99
> compelled to permit the transfer TO be made
The petitionng party is then required to file 1
all pleadings. denositions, testimony and othe
the proceedings by which the transfer wa
effected, and these. as has been seen: must sho'
the facts necessary to give the Circuit Coul
4 jurisdiction.