The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-01-05
REDON AND SPEARING.
THE SUPREME COURT REFUsEs TO
GRANT THE FROHIBITION AP-
Piled FOR nv REDON.
1t Has no Authority to Prevent the
Judge Of the sixth District Court from
opening the Ballots Boxes of the Tenth

Judge Of the sixth District Court from
opening the Bali0t-BOxes of the Tenth
Ward.
In the Supreme Court the following decision
was rendered yesterday by Chief Justice Man
ming:
No 1901 The State OK rel M. Fl. Redon vs.
j. II. Spearing ct al.
The relator alleges that he was elected to
the lower house ct the Legislature last No
tends to contest his election, and has served
due notice thereof, and has also presented q
petition to the judge OF the Sixth District
Court Of this city, praying that the testimony
|(Spearing's) claim. He further alleges that
tile judge has issued al order to the clerk OF
the Superior Criminal Court to produce the
ballot-boXe5 containing the Votes cast ali the
election at five several polls, and has also or
dered those boxes to be opened, and the bal
lots therein to be counted. The clerk OF the
| Criminal Court is the legal custodian OF the
ballot-boxes. The relator charges that the
| Judge is exceeding his Jurisdiction in granting
this order for the production ct The ballet
| boxes and for counting the ballots. and he
| therefore prays witt Ut prohibition.
| Upon rule to show cause why the writ
should not issue, which we granted, both re-
spondents deny that this court has iurisdlc-
| ton over the subject matter.
The application Of the judge to take testi-
mony Is made under the provision for con-
tested elections OF Representatives: amy
Judge Oh court OF record, Or Two 1ustices of
the peace, shall tissue 6ubpBnas Tor Witness
cs, and shall have power To compel their at
tendance, and the dispositions taken before
them shall be transmitted to the Secretary
Of State, who shall lodge them within three
days after the succeeding session with the
Clerk of the House Of Representatives. Rev.
Stat, Sec l432. ..,
| 1t would seem that Judge, acting under
this law, is not sitting In his judicial capacity,
but merely as 9 commissioner before whom
witnesses are TO be brought, and that 1t 10
only the dispositions OF witnesses that he is
empowered to take, for the law Is special, and
| no power should be exercised under Il that 10
not specially conferred. Wnether the pro
duction OF ballot-box and the breaking OF It's
posted, can pc legitimately Included under
an autnorlzatlOn 70 summon Witnesses ana
| take their deposltlons ls matter Tor the
Judge VINO IL acting under this special law TO
| consider. we can only observe that more
Than usual caution ana nesltancy should be
observed IN determining 70 90. an act which
does not appear to have been expressly au-
| tnor1zed; Inc ACT OF congress feiablve TO Inc
than our statute 10 this, that It specially pro
yides Tor the production OF papers U. y. Rev.
stat, Sec ll5.
Inc question q luTisdlctlOn, however, 1s tne
| vital one Tor our consideration. Inc House OF
| Kepr esentatIveS Is the Judge OIL the quall1ca-
tfons, elections and returns q It's members |;
but contested election shall be determined
IN such manner as may 6e prescribed by law.
Constitution, article N. Inc law mas not pro-
vided any special manner IN which the con
tested election OF Q Representative shall be
/ determined. and, therefore. the House Is the
| exclusive Judge OF such election and the re-
turns thereof: Io facilitate u 10 the perform,
ance OF this Junction, permission Is accorded
to all parties claiming the seat to take the
depositions 0I Witnesses, Whlch are required
TO be transmitted TO the Secretary OF State,
who must lodge them with the CLERK OF the
House.