The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-03-20
THE NEW ORLEANS DEMooRAf THURSDAY MARCH 20 1879

as q Mr.. Marbury supposed, and produced the
celebrated leading case of Marbury vs. Madison,
into in supposag that thew tie writ of MANI
produces q suit ys. the State In violation of
ne ne fleyenth amendment to the constitution of
py the state, and under its direct authority IA
laid down IN our Code of Practice, to perform a
ministerial "a ~ duty The effect which you claim
as Tue result OF the writ was distinctly plead
and has been Invariably overTnled as frivn.
lous or unsound; Thus It is stated by VI an able able
Of government, which will be able to secure to
the citizen his rights. 1t is necessary to have
persons appointed or chosen to administer the
law. and wnen persons are thus clothed with
the power and have assumed the duties of a
public officer, they have taken upon themselves
the obligation to perform those duties; and il
they neglect or refuse to do SO, any person
whose rights are thereby injuriously affected
is entitled 10 demand relief The remedy pro.
yyided by our system Of lay. as well as that of
England, is arrocsss issuing from the judicial
branch OF the government. and in the name of
that government which seeks to compel the
joined upon him by the position he holds.
This process Ia denominated @ writ Of man.
damus. and when there Is right to execute an
more especially IL it be matter OF public con-
Germ or attended with profit. and a person hay
Ing such right is wrongfully kept out of pos
session. or dispossessed OF such right and has
no other specific legal remedy. the court will
interfere by mandamus. upon reason of justice
and upon reasons Of public policy to preserve
pbuCet UutT uIiu gOUu VGDSTFtTtBJU In EUklHD1,
It is one Of the flowers of royalty. In America.
1t is the brightest gem in the diadem
Of our judiciary system. BY its aid the
proper subsection to their sovereign will. and
the citizen admitted or restored to his rights
and the enjoyment OF a franchise grant,d to
damus,. .. 49, 1t was invented because pub
lie justice and good government demanded II,
and y has been. from the. earliest history Of
English Jurisprudence. fostered and imp roved
because the soants Of a progressive people
required It," 1t even issues to the on
GERS of the. United states government. al
though, as Mr.. Webster says, and you argue,
the United States cannot be sued. Mr. Moses
says, "Wherelthe heads of departments are the
political or confidential agents of the Executive.
cent in cases where the Executive pos
sesses constitutional or legal discretion
nothing can be more perfectly clear than that
their acts are only politically examinable. But
whore specific ministerial duty Is assigned
by law. and individual rights depend upon the
performance Of that duty It seems equally clear
that the individual who considers himself in
Jured has right to resort to the laws of his
country for remedy. and that mandamus Is .
proper remedy" The doctrine that mandamus
lies, on the application Of pr vate individual
and for his bsnetit. to compel the head of de-
partment to perform mere ministerial duty.
s where that duty Is plain, seems to have been
fully maintained In the commissioners of the
Land Office vs. Smith. Tex. All. In Decatur
vs. PauldinR, IA Peters, a mandamus issued to
the Secretary OF War OF the United States gov
the duty was discretionary, and not ministerial.
In Kendall vs. the United States. IA Peters 524.
Il was decided in this court that the Circuit
Court for ashington county. In the District of
Columbia. has the power to issue a mandamus
to an officer of the Federal government, com
handing him to do a ministerial act"
The rule to bs gathered from all the cases de-
cided In the Supreme Court of the United States
governing mandamus to the officers of the gov
eminent seems to be this: 1t cannot issue in a
case whore discretion and judgment are to be-
exercised by the officer nor to control him In tho
manner OF conducting the general duties of his
office 1t can be granted only. whore the act re-
CURED to be done Is imposed by law-is merely
IN MINISTERIAL and the relator without any other
adequate remedy. Judge Waite says: "Manda-
there Is se "a and
right requiring the performance of duty and
gives the relator the right to writ requiring
tax to be levied. which shall include provision
for the payment of his judgment. 1t issues
where the duty can only be performed by the
exercise of the power of taxation which the
has refused to levy and collect the necessary
tax. We ore therefore. called ON to determine
whether the court has The power by its writ Of
mandamus, to enforce the performance of this
duty. The Supreme Court of the United States
has many times so decided. "a How. &c. 4
Wall. 5a5.. 7 Wall. s13. Wall. 166. 574. Wall.
415, 409, 4 Wall. 435.
Now, in Otto, D. SAL, In the case of McComb
vs.. the Board Of LiGuidators. it will be seen that
the amendment of the cone tituion, as to the
funding law and the act of 1874 III dsrwent iu.
dicial Investigation and have been recognized
~ binding upon the State. and the Supreme
Court, Of the United states say: On this
considered cases heretofore decided by this
court leave little to be said. The objections
to proceeding against State officers by
mandamus or Injunction are, first, that 1t
ts in effect proceeding against the State
itself; and seconc IT, that it interferes with the
official discretion vested in the officers. 1t is
conceded that neither OF these things can be
done. stat9 without its consent cannot be
sued as an individual; and q court cannot sub
stItute its own discretion for that Of executive
officers in matters belonging to the proper
jurisdiction Of the latter. But it has been well
settler that when plain official duty. requiring
no exercise OF discretion. Is to be performed
and performance is refused. any person who
will sustain personal injury by such refusal
may have a mandamus to compel ITS perform
violated by some positive official act. any per-
son who will sustain personal injury may have
an Injunction to prevent it. In such cases the
wits of mandamus and Injunction are some-
what coreative to each other. In ether case. il
the officer plead the authority Of an unconsti-
tutional law for the non performance or Viola
ton OF h s duty, it will not prevent the issuing
of the writ. An unconstitutional law will be
treated by the courts rs null and void, 9
Wheaton $50 Is Wall, 200.
SO you must see, Mr.. Editor. that the State OF
Louisiana, in solemn convention. must repeal
or reverse her Jurisprudence aud abolish the
writ of rnandamus, State and Federal, before
which you so. as think .unadvisedly contend as
judicious and proper. 1t is g task that involves
revolution and consequent anarchy which, feel
sure. your able journal would shrink from In
augurating or advocating, and that by so seem
ing you wrong yourself" Il would not hear
your enemy say go" If in telling the people
the truth. the wItoIe truth. and nothing bh The
truth. Mr.. Semmes and ID. g. IL render them
selves amenable to the charge of claiming for
the Judiciary feathers weight Of power not
nominated In the great charter of the organic
law and in our oft decided Jurisprudence, and
that our unbought opinions and labors are
fruitless. to keep the public mind healthy. ac-
people and so much the better. as patriots, fol
Mr.. Semmes and ID, O. L.
Reeds Gilt Edge Tonic is a safe and pleasant
inyiporant for delipate fanaIaa