The New Orleans daily Democrat., 1878-06-08
THE GEALE CASE,


elusive enunciation by the highest tribunal in
the State Of the cOnstitutionalty OF act No. g..
1t is SO asserted to he by aponny-a liner, who
writes for tho PicnV,p,e over the signature
Of Lex" and even Judge Whitaker in the
SalOy case, while agrantIy disregarding the
only prinCipa OF law this decision lays down,
had the temerity TO refer to 1t as
concusivcly settling the validity of that
act. So far from this being true
the Supreme Court pointedIy refused to CON
slider that question at all, and declined to
| issue the writ Of certiordri by which the con
stitutionality of the act could alone have been
brought before the court for discussion and
final judgment.
ANY tyro knows that the plea to the
Jurisdiction of court Is made IN hminP
| Lnis on the very threshold of q suit-and
| If substantated, absolutely prccludos the
consideration by the court of the merits of
the case, or of the law governing it, and
any Judgment it may have rendered
after sustaining tho plea, beyond a simple
| dismissal of the suit, is an nbsolut"
nullity. In the Geale case the court said
| 1--WE have therefore arrived at the conclusion
that we cannot grant the relat0r the relief by
a writ of cprttoruri to bring up the proceed
ings of the recorder, to the end that inquiry
of their validity be made, because of our want
of constitutional power TO exercise the iuris
dictiOn."
In thus declining Jurisdiction the court was
estopped from entering upon the merits of
the case, and any opinion 1t may have
uttered In regard to the constitution
e ~ NJ, In DIIt nf hn
Legislature to pass It, or the duties
of recorders hereunder, except so far as
these questions bear upon its own iurisdic
tiOn, was mere vapOring and Is utterly with
out binding force either upon that court or
any other Had the court declared act No. 9
to be constitutional after taking the view as
TO their lack of Jurisdiction cnunCiated in the
Geale case it would have merely amounted to
n gratuitous intimation Of the opinions held
by the individuals composing the court, and
not to formal and iinal decision. This. |
however, the Supreme Court has not
done, but it has gone out of its |
way, contrary to the wise preCaution
customary with such high tribunals. to pas q
UPON purely incidental question In regard
TO which It should have expressed no opin-
to say what 1t thought about the extent OF
the judicial power that could be conferred |
upon aud exercised by recorders. This was
question confined strictly to the merits OF the
case. upon which the court decides Itself |
without Jurisdiction to enter, and what 1t
says upon that point Is mere supererogatton.
and has neither the dignity Of an authority |
nor tho force of q Judgment The principle @7
laid down, however has never been disputed, |
and no harm has been done in Pnunciating |
it, beyond what may have resulted from the |
Of the uphOlders of the |
Lottery who never fail to quote this portion
of the opinion az q conclusive vindication OF !
the ConstitutionaIity of act No. 9. The ques- |
ton of it's cOnstitutionality was not before |
the court and all that may have been said |
unOn that question, outside of the inquiry |
whether the case of Geale falls within the
definition of fine or penalty imposed by
corporation, is mere obder dc
TUNA thing incidentally said-and not q
decision.
Let us see now what was decided in the |
Geale case We have already quoted the |
conclusion the court reached that it was
without jurisdiction to inquire of the validity |
OF the proceedings Of the recorder. The pro
cess of reasoning by which this conclusion !
was reached is disclosed in the following |
points passed upon by the court, viz:
/. This mandate can only be directed to an !
inferior Judge by the court having Immediate |
appellate jurisdiction over him, and by no |
other.
g. 1t is only granted in cases where the suit |
is to be decided in the last resort, and where |
there lies no appeal.
3. The constitution commands that the Su-
preme Court shall have appellate jurtsdic-
ton only, except in cases which it alone shall
Designate and it has designated but one, i. T.,
the power to issue writs Of habeds corpus in
cases where the court may have appellate
jurisdiction.
4. Considered as a civil or criminal cause |
the case Of Geale is one in which our jurlsdic-
ton does not attach to the proceedings Of the |
recorder.
s. It is not case that falls within the def |
nition Of fine or penalty imposed by q mu-
nicipal corporation.
6. Our jurisdiction being appellate merely, |
according to the constitution, the provisions |
of the Code of Practice in regard to the writ |
OF certiorari do not apply to this court, and |
the case at bar not being one within our jul |
risdiction we cannot grant the relief asked |
These are the points that have been deciled, |
and thesA are precisely the ones that Judge |
Whitaker does not refer to in his decision in |
the Saloy case In that decision be claims |
jurisdiction on the ground that his court is |
vested with all the powers Of Il court Of the
highest criminal jurisdiction" which court in
this State is the Supreme Court. His powers, |
then, of supervising and reviewing the de-
cisons of inferior tribunals is precisely that
of the Supreme Court, according to his own
theory. 1t is subject to precisely the same
limitations, and can issue no mandates to
any court except in cases where it has appel
late jurisdiction. This portion of the decision
of the Supreme Court in Geale's case. which
has all the force and obligations of a judg-
mpnt Judge Whitaker utterly diSregarded,