The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1880-02-25

In order that he may devote the time to take
dispositions In the parishes to rebuff the testt-
mony that may be addueed against him, after
the session has begun. After the contestant
had introduced all his Witnesses. rontestee
asked for time tn summon his witnesses.
After strenuous efforts of hls ronnael he oh
tanned a weeks delay to take the depoaitions
OF his witnesses IN the parishes hut he was
restricted to the parishes of st. Martin and
iberia, and the time was too short to enable
him to get the depoaitions Of all hts witnessed,
i lie considered that he was deprived Of the
opportunity intended 70 be secured him ~
| law.
| 1t II alleged that Senator a. Y. lllar,l is In
| eligible under article 70 ~ the constitution,
on the pretext that he was not an actual real
dent of the district from which he was elected
| for two years Immediately preceding hla
| election. The evidence shows that Senator
i Rtard was born and raised III the parish Of
Lafayette, and has always resided there Hts
| homestead and his principal establishment
are there He WAS appointed naval officer Of
the United States In 1876, which necessarily
required his presence I'm the city Of New Or
leans todischar9e his official duties, but he
never removed with hls family to this city.
llis wife continued az heretofore &C. reside ~
| bln home III Lafayette, none rf hla house
hold effects were brought to this city, and as
soon as he ceased to be naval officer he went
home. How. then, can IL be pretended that
Mr.. RIatd had abandoned his domicile In
| Lafayette? Article 1913 Of the constitution
provides that, For the purpose Of voting, no
person shall be deemed to have gained rest
danea by reason Of hia presence" rr lost Y ~
reason Of hls absence. while employed ~ the
service either civil or military, of THE State
or of the United states, nor while engaged In
the navigation of the waters OF the State or
the United States, or Of the high seas. nor
while student of any institution OF learn
ing.
years ago. Mr.. Rlard. while IN the service Of
| the government aa aforesaid voted In this city
| at the presidential election OF that year. being
under the impression that he cpuld vote In
any part of the stae for the presidential
| elpct,.s and II ia pretended that the fact ni
ha voting established hia dontniIe IN this
! nalial. WE cannot agree With the majority
| III their OPINION and conclusion,
| The civil Code. article AZ, says. 'Fhednml
ellie OF each citizen is IN the parish wherein his
principal establishment is selertes. Judge
| Story in his conflict OF lava, page Al. states .
lin i strict legal senso that is properly the
dnmrla Or u person where he has hia true.
fixed and permanent home and principal eatah-
| lahnent, and to which HI Intends to return.
| Our Supremp Court has laid down tho follow
| Ing doetrnes. "Iheuu"sttou Of donletle IL on"
Of great nicely. which must me decided on tho
| facts of each case in the absence of the formal
declaration ~ An. Ans. Evans w, Payne
N Hafriann. THE fact that y person haa
/ voted In this State and even become randt-
date iet the Legislature here. Ia not sufficient
| to show a change OF donictle from another
State II II be proved that he newer made n
| pe,3napent change IN his residence. IL An.
2sl; Vaudeville va llustnn.
Tho act Of residence does not alone rnnat'-
| tnte the drmria OF a party, hut II ~ the tact
Or residence coupled with the intention ot r.
manning permanently which constitute IL.
Is A. 637; Mckpwen vs. MnGuire.
| A residence for n year In this State. oven II
the party he appointed police juror and votes.
does not constitute a douctlc unless euple'l
with the Intention Of acquiring domirile
II ~ IA. al1. Sandara"n W. \ ,lstnn.
Tho own Code article Az says.
"rhe intention Ia proved by All express do
claration of IL before the Judges OF the par
iahea from which and to which he shall In
tend Ia remove. This declaration Is made IN
writing, is signed by tho party making IT,
and registered by the Judge.
Mr.. Riard haa never made such Or any o.
cIaratinil whatever. In the naae of Lincoln
va Hapgood, 1, Mass. y. $50. 1t was held hy
the Supreme Court. OF Massachusetts, In 1874
that person having a permanent home II
one town within that State, and being n legal
voter In such town. Ia not disqualified by q
temporary absence In another town and
being there admitted 70 vote. McCrary
aaya. "Sec. "a. The general doctrine laid
down In this case is doubtless correct. W a
peraon Ia clearly a resident OF. and legal
voter In one place. and Ia improperly aud
illegally permitted to vote at another, that
fact alone will not diauualify him from con
tinu.ng u vote at the place OF hia actual rcsi-
deneea IL ID not tho act of inhahitanry
which constitutes tho domicila. but II Is tht
fact coupled with the intention OF remaining
there. In cascs of doubt. tho ortgna
domicile of n party ia conatdered IA the tru,
domicila. Such has becn the decision OF the
late Supreme Court In the case of dravillon't
, heirs va R,rharda's executors ct al. ~ La
2aa. and such IL the jurisdiction of the Court
! of Cessation, Merlin Rnp, verbo. Domic'l'
, -. Cole We Lucas, .. A alS.
In regard to the change In the location o
the poll In the third ward, parish OF st Mar
tin, we do not consider II just TO set aside the
votes cast at this poll. the courts have held
that tho voice Of the people ta not to be re-
jectnd for u defect Of this kind tho chang,
being a matter Of necessity. and no one failr,
to vote on account OF the change. Tho ware
is strongly Republican. Tho usual number
of votes was cast; in fact. u larger number .
votes than were east at the preceding cleo
ton. and from All inspection Of the lst o
those who nhstanri from voting, two thirds
are colorcd Republicans, and had thcy rNcr
! cised their franchise tho majority OF Rlar,
would have been increased: hence tho clcc
tian at Mrs. Voorhees, instead of nj Gut
dry's did not change the result and would no
have benefited the contestant.
The Supreme Court Of Iowa, In Dishon va
Smith. 10 Iowa. y. az, says "fhr courts
. have held that the vricnuf the people Is nn
to 10 rejected for defect, or even u want o
notice. II they have in truth been called upor
and have spoken. In this case there was M
election and the people of the county voted
= and it Is not alleged that any portion Of then
, failed In knowledge Of the tendency of tn,
question or TO exercise their franchise" Nc
n Crazy. n. ~.
I The numerous contrary decisions quotct
IN the majority report are in instances wher,
there was no reservation made In their clce
ton law, such as has been provided in ON
statutes, for Il safeguard and protection Ii
, the following words:
SEC. 80. Hc II further enacted, etc, That nc
X election shall ~ vitiated III account Of til,
negligence illegal or improper act Or conduct
OF any officer or other person, unless 1t b'
proved in a contest that sufficient number
of electors were thereby deprived of theil
votes to have changed the result of the elec.
ton. Article -, 1877. section s..
! The cause 81 the change il explained as fol
lows hy Chas. Gnerninrr, Jr. who testified rs
follows: Il am sheriff VI the parish VI st
! Martin. | was part OF the day at the thirc
poll and part at the first poll; was not u,
the third poll at the opening; | saw MIR
Guidry few days before the election II,
J informed me that the room which had beer
) used at former elections was occupied with
corn and could not be used AZ polling place