National Republican. (Washington City (D.C.)) 1872-1888, 1879-12-16
Mr.. DAUPHlN'S SUIT.
The Jurisdiction of the District
Courts Denied.
Hearing of tho Application for ON Injunction
Against Postmaster General Key-Ar-
Euinents ON he Demurrer Denying
OBSERVATION-DISCLOSURES Carpen-
ter Declares the Law I'm
constitutional, SO,
The Lotterv Mail Cage.

General David NJ, Key.
Among the audience were many prominent mem.
bers Of the bar and other well known citizens.
| Chief.JustlCe Cartier and Justices Hagner and
Senator Carpenter, O. W Moulton, of Cincin-
natl, Ohio, Mossrs. BARLEY aud Southland aud Il. Is.
Hay appeared for Mr: Dnnphin, and Hon. 4; a.
Freeman, Assistant AttorneyGoneral for the Post
Office Department, md Judge G. A. Ray, for the
| Postmnster-Genernl
The case came into court on the petition of Mr..
Dauphin for an injunction against the Postmaster
General to restrain the enforcement Of an order
| prohibiting the postmGsters Of New York and New
| Orleans delivering mail matter money postal
orders and registered letters to the complainant.
| The counsel for the defense filed demurrer to
INC Dill Yesterday morning shortly before the court
Mr.. southard for the petitioner read the bill of
complainant and tho different statutes referring to
the postal laws governing the carrying OF letters
| in the mails and delegatng the powers of the
| acknowledgement in the premises lie also read
| the circular order prohibiting the payment Of
postal money orders TO NJ. A. Dauphn and direct
ing the return of the same to the sender also, the
instructions to the rostmasters at New forkRnd
New Orleans TO return registered letters addressed
to NJ. A. Daupbin to the place from which they
were mailed
MIR. Freeman snid that the original order had
been amended SO as not 10 include letters adj
dressed TO NJ A. Dauphin individually before the
bill was filed, and the counsel so Informed.
| Senator Carpenter thought that statement would
do to put In the answer.
Mr.. Southland resumed the reading Of the bill.
Chicf-Justice Cartier snid rs the bill had not
been printed and could not be placed before them
| he desired to know what issues they had there
ana II the private correspondence mingled in the
Mr.. Southland claimed that the point was dis.
tinctly and explicitly averrcd.
Judge Ray, for the defendant, said that demur-
rer had been filed. There were no letters legiti-
| mntcly private letters and so specified, and they
did not refer 70 other than lottery business letters
The bill was brought against the Postmaster GEN
| eral as citizen OF Tennessee. 10 this they de
INJURED, and thought that no such bill could he
| brought. The defendant denied the Jurisdiction
OF the court. As Postmaster enerai, ne has Gus
tody Of all matters pertaining to that Department,
and claims that as the letters to the complainant
are IN the interest of lottery which is forbidden
| by law, that he has the right under the law, to
prevent the circulation OF Matchmaker in further
| nnCc of such schemes
At this point the question arose az to which side
was entitled TO precedence IN the argument.
The counsel for the petitioner claimed II on the
ground That they filed petition for an injunction,
which had not yet been granted; and while the
defendant put in demurrer conceding the truth
OF the allegations in the BILL still that did not con-
vcy 10 the latter the privileges OF the argument.
The defense commended that as rule
to show cause had been laid upon them
restcl upon them, aud they were entitled to the
opening and closing. Senator Carpenter said that
the demurrer had not been set down for argument
and was not before the court except as an impeach.
ment for the answer. They might concede the
strength OF the demurrer and then claim their In
junction on account of no answer or The insuliicency
| OF the answer
The rule, as far as his experience went was that
the party seeking the injunction had the burden
upon him, and consequently was entitled to the
opening and closing ChiefJustice Cartier said
that it made very little difference except as TO
settling matter of practice. In this case there
was nm admission ~ To facts and denial MS 10 law,
and upon It is claimed the privilege in argument.
His opinion was that the demurrer should be heard
in the natural order of argument The respondent
hGd been called upon 10 show cause why an in.
Junction should not he granted sgainst him. lie
comes IN and demurrs TO the complaint, and says
If all set down is true, that does not prevent him
from exercising the functions of his Office 1t &C.
Cured to him that the practice should continue as
II does on demurrers generally
Justice IIngncr agreed with the Chiei-Justice and
the hearing was ordered to proceed on the de-
: murTcr.
Judge Ray said that under the act of 1868 the
. Circuit court has jurisdiction where one OF the
e parties was resident of State and the other OF
this District. Since that time jurisdiction has been
conferred on the Circuit courts whore parties are
residents of the different States and within Tie
jurisdiction OF oneOf these courts but they main
tanned that the oct or amendment thereto did not
effect the jurisdiction Of this court.
Assuming, however, that the attempt was 10
reach the POstmaster-General, they contended that
the court had no power to issue this Injunction The
President of the United States had his Cabinet OF
what was known as his Constitutional advisers
and the act OF the head of ofthese departments
IN the Official performance ofhis duty was merely
+ the funCtionary Of the President and the latter
alone was responsible for such official action. 1t
was not decided that the President may be en-
Joined or mandate Issued against him, requiring
the performance of a ministerial act, but this was
not one of these instances where such power could
be brought into rcquiSitiOn
Senator Carpenter said that they would concede
that where Constitutional act Of Congress clothed
an officer with dscretonal official authority that he
alone must perform that power, and could not be
Interrupted in the execution oft,
Judge Ray maintained that where an act OF Con.
gress placed discretionary power in the hands OF
the President or imposed upon him the enforce.
ment of act of Congress court could interpose
: to enJoin or restrain him IN that execution,
whether the act be Constitutional or not
Senator Carpenter-It would take a week to argue
and settle that point.
Judge Ray, resuming, said one point raised
among others was whether this law was Constitu-
tonal.
lie read from et parte Jackson 9th Otto, to show
that the law determined not only what should be
carried, but what should be excluded from the
mails
Senator Carpenter-That was case OF habeas cor.
pus, and the court held that the cause could be
brought the court try and punish but not that the
postmaster could try II.
. Judge Ray insisted that the Postmaster. General
under the provision of the statute establishing the
, registered letter system had full and undsputabe
power TO take the course that he had pursued.
L Senator Carpenter wished 10 shorten the case
and said he should admit that, If this act Of Con-
gress was Constitutional then the order Of the Post
: musterGeneral was genuine and proper. But he
should insist and believed that he could establish
that the PostmasterGenera had no right to accuse
try and condemn, substitute himself in the place
OF the courts, and, as the head of common carrier
system specify who shall enjoy these privileges
and who shall not Judge Ray said that If the act
was unconstitutional then the roliof was against
the subordinate who Obeyed his superiors orders
and not against the superior who gave the uncon
stitutonal order.
lie asserted That matter concerning lotteries was
not mailabe matter, The law 30 expressed II, and
that law had bten declared to be Constitutional
withheld was not Of a lottery character
Senator CGTpcnter-lIow can we when we canno,
get hold OF It aud set Il up In the bill7
! Judge Ray said that II was matter prohibited by
law from passing through the NAH and legally
withheld from delivery
Judge BARLEY, for the complainant said that he
thought tina, tho matter OF Jurisdiction over the
issuing Of an injunction, so far us this court was
2 concerned, settled. This was the first time he
V had ever heard IL asserted that officer of the
! Government could not be restrained nom the per.
| fomance of I'M unconstitutional act
n Judge Ray said that ne did not set up such doc
tTne, but did hold that where the President OF The
United States was made the executor of q law
y against him should come the eniOinng and moi
against the head of the POstOfice Department
Judge BARLEY argued that the business In which
Mr. Dauphln was engaged was sanctioned by the
laws and constitution OF Louisiana and was legal
that he was also engaged in banking which branch
- Of his business was unconstitutiOnally interfered
with by the order Of the Postmaster-G General and
| that when letter was stamped and received by
the postal authorities II was their duty to deliver Il
10 unseaed. He desired the power Of the Postmaster
| General to try convict and condemn man with
y out anOrding an opportunity 10 be heard In de
a tense
Senator Carpenter followed for the petitioner
Ho pointed out that in the early history Of the GOV
A eminent there was the greatest watchmness L
sustain the distinctive relations of the O.ordnat,
q branches Of the Government and read from IN,
writings of Daniel Webster to show this. Now /
had gotten not only 10 the heads Of the Depart
III ~