The Donaldsonville chief. [volume] (Donaldsonville, La.) 1871-current, 1881-04-02
The Cheevers Case.

1AOn VI NO cause OF tActlOn-An Appeal
to the Supreme Court taken by PLANTING.
Judge Michael Hahn of the Twenty
Sixth Judicial District arrived here last
Tuesday, according to appointment, and
after directing the Sheriff to open court,
assembled the bench and read the follow
ing decision on the exception of no cause
Of action filed on behalf of Judge Chez
vers in the cause celebrc instituted with a
view to his expulsion from the office of
District Judge:
State &c rel Attorney General ct ais, Us.
John A. Cheevers-No. l. 22nd Judici-
al District Court-Parish of Ascension.
On exception Of no cause Of action.
Reasons:
The defendant, by exception, contends
/" that plaintiffs petition discloses no
legal cause of action;" that this action
is by plaintiffs declared and attempted
to be brought under those statutory pro-
visions known as the intrusion in office
acts Of 1868 and 1870; that plaintiffs pc
tltion alleges no action OF intrusion or
usurpation as having been committed by
defendant when this suit was instituted !;
that suits such as the present one can be
based only Oh some express statutory
provisions giving Il statutory remedy and
right OF action, and that there is no such
statutory provision authorizing suits for
exclusion from Office prior to induction
therein, or before possession by defend
ant Of the Office from which lie is sought
to be excluded, and that no valid iudg-
ment (save one of dismissal), can be rem
dered Gil the allegations and prayer of
plaintiffs petition"
The defendant entered into office as
Judge Of the Twenty Second Judicial
District Court by virtue of Judgment
Of the Supreme Court Of this State, (32
A. 649), which declared "that John A..
Checvers be permitted aud authorized to
enter upon the discharge of the duties of
such Judge without prejudice to the
rights of whom it may concern to contest
his eligibility to that Office"
Subsequently, i'll an appeal from this
court OH the exception to its jurisdiction
ratione materiae, the Supreme Court over
ruled such exception and ordered that
defendant "answer to the merits, and
now, in order to enable the District
Court to pass npcn the issues presented,
it is decrccd that this case be reminded
to the lower court to be further pro-
cecled with as the law provides"
Plaintiffs deny the right of defendant,
ut this stage of the proceedings, to file
and have decided the exception of no
cause of action now before the court, be-
cause the case having already been be-
fore the Supreme Court on one exception
and being remandcd to be tried on the
merits, or rather "to be further pro-
ceeded with as the law Provides" tue
present exception comes too late. | do
not think this objection good. OF course,
u party should not be allowed to file q
number of technical exceptions, singly,
one after another, and TINS rctard his
adversary's action Q3 A. 409), but the
exception OF no cause Of action may be
filed ut any time.
In the case of Burbank, tutrix, rs.
Harris (32 A. 1860, the Supreme Court
held, in affirming IL decision of the late
Judge Of this court Hon. H. l.. DuffeD,
that after case had been twice tried in
the District Court on tho merits, and
each time appealed to and remandc,l by
the Supreme Court with Instructions to
admit certain evidence relating to the
merits, and OH the third trial in the Dis
trict Court all exception of 10 cause of
action was allowed to be filed and was
sustained and the suit in consequence
this decision Of the lower
court was correct. The plaintiff in
that case conten,led that the mandate
of the Supreme Court Gin renlantling
the case was to admit evidence; that
it had already been a'ljudgrd that there
existed cause of action :" III other
words, that any and all faults of
pleading had been condoned in and by
the judgments on the previous appeals,
and they were res adjudicata as to ali
matter save that Which had been remit
ted to the lowe. court for investigation
Chief Justice Manning, in delivering the
opinion OF the court; OH the third appeal,
in answering these complaints, said
90 There was nothing atljudged touching
the pleadings. It was not for us
to direct All amendment Of the pleadinys
The omission to make that amendment
lays at her own door,"
Now, as to the exception itself, plaint-
ifs have declared that the proceedings
were instituted under, and this action
based upon the act known as the in
trusion in Office act. These proceedings,
and this suit must accord with and full
ill all the requirements of the two acts
Of 1868, Nos. SO and 1856, PIP. II and 100,
sections 1893 to 1905 Of the Revised Stat
ntes of 1870, PIP. 511, SIP.
The action given Ivy these statutory
provisions can be brought only i'll the
following cases:
l. When any person shall us,rp, in
rude into, or unlawfully hold OF excr-
Else any public office or franchise within
his State.
2. When any public officer shall have
lone, or suffered to be done, an act
which by tho provisions of law shall
work a forfeiture of his office, or
3. When any association, or number
# persons shall act within this State as
corporation without being duly incor-
,Orated.
It is to be noted that section IL of the
lct Of 1868, and section 1903 Of tue r. S.
leclare that all laws or part of laws in
his State, touching on the subject of
no carranto, conflicting directly or in
lirectly with any Of the provisions of
his act, he and the same are hereby re-
,ealed."
The intrusion i'll Office acts pre-suppose
he actual precedent perpetration OF the
fence. They do not deal with matters
u passe, but with matters IN esse with |
he thing already, truly and absolutely
Que, contradistinguished from and in
pposition to matters merely possible.
The allegations in the petition do not
ring Judge Cheevers within the pur-
lew and operation of the statutes refer
cd to. The latter deal only with accom-
lished facts, not with the will or in
Bnt. The mere intent to intrutle or
surp, etc, is not sufficient. The State
ad no legal right against Judge Chez
ers on the day when it instituted this
nit. In the absence of any legislative
revision against duly commissioned
nd qualified District Judge, no action
t law lies to prevent him from entering
II the duties of his office. The legal pre-