Year: 1868

himself the points mentioned in the abslrlc


above in the way of summing up. 1T


only for the party whose rights are invadet


to plead the coDs;itutionality of th
law" (l2 Ang) II is clear, proceeded Mr.
tlieul, that the Mayor had no right to ap.
point Mr.. Diamond. Cain, then exercising
the functions of Superintendent, was the
party whose rights were invaded, if this
principle of our jurisprudence is to be fol-
lowed out. Having read the police act he
was unable to see that any judicial power
was conferred upon the official under that
law, yet such power could be intrusted by
! the Legislature. (Art. "a COM As to the
point that mo person shall hold at one
time more than one office of honor or
profit" it can not apply to Mr.. Cain, but
probably Aieutenant-Goveinor Dunn, the
person TO whom allusion is made. (Art
III COM 1t had been decided in New
York that the ex officio position was only an
extension of his duties.


Judge Cooley: Does the Lieutenant
Governor receive any salary?


Mr.. Fileul: If he should, that would
make no difference from the principle lie
could not perceive in what manner article
lis had to do with the case; it was the
provision referring to taxation, and the
law, according to his Interpretation, did
not levy tax upon the people. The pro-
vision making Lieuterant Governor Dunn
ex-oficio President of the Board of Police,
even if it were void, would not vitiate the
law. A portion of the statute Deing void,
that does not necessarily affect or make
void the remaining portions of il; that is,
if the balance Of the law be not uneoasii-
tutional.


The following is the summary of the
above argument:


/. An action for quo loarrdnto cannot be
brought in the parish Of Orleans except by
the Attorney General.


2. There is no vested right in an indivi-
dual to office.


Mr.. Filenl then spoke of the duty Of
good citizens to obey all laws, bearing the
marks OF its passage, and not question its
constitutionality. What would become
of society if every one should take it upon
himself to disobey the law because there
had been malpractice in the Legislature I?
Should the law dlrest me of all my rights.
strip me of everything | would be bound
to submit, because every law must stand
until judgment pronounces it uncopstitu-
tional.h


Judge Hawkins associate counsel for
Mr.. Cain, proceeded 70 say that the whole
question IL Does Mr.. Cain exercise the
office of Chief of Police? In his an 5wer to
the petition OF Diamond. who asks by what
right be usurps the Office of Chet OF Police,
that he (Cain) is not the Chief Of Police,
hence the writ must fall for this reason
The Legislature, in their wisdom or their
nOnsense-it is not material which-saw fit
to pass the police act, and alter the whole
system of policing the city OF New Orleans,
power which they had clear right to ex-
ercise. BY the same logic with which the
ears of Courts are now inflicted, the con-
stitution itself is unconstitutional. The
action in the present instance was brought
against the law, which was party on
one side. The Supreme Court of the United
States had decided in certain case an
pealed from the State Of Mississippi, tha-
the law itself could have no standing in
court; the law being made party. could
be no party, and hence the Supreme Court
could have no jurisdiction. The theory
upon which the counsel for plaintiffs pro
ceeded to question in this reckless manner
every law, because we do not like the in
struments who make it, is a false and haue-
tul doctrine, subversiye Of the true princi-
pies OF government. So long as such a
spirit runs rampant in the community there
never will be peace or order. The better
class of the community are constantly
teaching the public these doctrines 1t has
become a tavorite idea that the Legislative
enactments have no binding force until The
Judiciary shall have pronounced upon
them; but it is false idea. The Govern
ment is the lawmaking power-there are
reposed the rights OF the people, of every
one, and the courts themselves derive their
Frp ba ..It Al
case of the plaintiffs Il made case" and in
the history o this country made cases" are
particularly unfortunate, and he had re-
terred to the theories of the Constitution
merely TO combat the theory that the con-
stitutionality of the law was in question
it was out of the record was notinrolved.
In the way the case sets there is no need
of pTonouncing upon the constitutionalily
of the law. Suppose it is said Mr.. Dii-
mond is Chief of Police, We hold there ia
no such office. The police are appointed
by the Board of Police. An interrup-
toni On the pleadings your honor must
pronounce that ii her Mr. Cain is a usurp-
er or that he isn't. You may believe the
law to be impolitic or bad: but that has
nothing to do with the question. The con
suudonaliiy has nothing to do with the
question under the pleadings, nothing
whatever to do with it.


Judge Cooley:'Suppose the police act is
unconstitutional, what will become Of the
defendant?


Judge Hawkins He don't hold The
Office.


The counsel proceeded to touch upon the
same points about the bad policy of pre-
nouncing upon the unconstItntionality of a
law when it was not brought in questions
a court who would 60 so far out OF the
record tending to excite TO greater degree
the public mind, would actto the prejudice
OF the public.


Mr.. Phillips, on behalf of the plaintiff.
closed the case. Referring to the argument
of Judge Hawkins as a dissertation on the
theory of the American Government, and
referring to the argument of Mr., Flleul as
one to which he could not consent that is,
that everything under color of law, wheth-
er constitutional or not. he touched upon
~. III, Al q