author: Taliaeb.ro, J. Wyly, J.,

text:
    No. 4655.
    William B. Kemp v. E. P. Ellis.
    The provisions of the act of the Legislature, Ko. 39, 1873, for transferring cases are not repugnant to articles 83, 90 and 114 of the State Constitution.
    The "Warmoth commissions that were issued before the general election returns were reported and promulgated by the returning officers of the State, are null and void.
    The court will take judicial cognizance of that irregularity which renders the issuing of a commission null and void, as having been done in contravention of positive law.
    A commission issued by the Governor must be recognized as having legal force, whon it bears prima facie evidence of genuineness and validity, and nothing to the contrary is shown.
    APPEAL from the Superior District Court, parish of Orleans. Mawlcins, J.

      H. O. Dibble and D. F. Fussel, for plaintiff and appellee.

      J. R. Muse and T. & J. Filis, for defendant and appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Morgan.
   Taliaeb.ro, J.

William. B. Kemp and Ezekiel P. Ellis contend for the office of District Judge of the Sixth Judicial District of the State. Each claims to be legally entitled to the office. Each claims to h°gj^ been duly elected to that office at the general election held on tüo fourth of November, 1872, and each presents a commission purporting to have been issued under the authority of the State, but by different persons acting at different times as Governor of the State.

This proceeding was commenced in the parish of Tangipahoa, and what adds to the complications presented there are two persons claiming the office of Parish Judge of that parish, C. J. Bradley and J. W. Addison. The contestants for the office of District Judge severed in their recognition of a legal parish judge.

Kemp presented in that parish a petition addressed to the judge of the Sixth Judicial District setting up his title to that office and prayed that Ellis be cited' to show cause why the petitioner should not be declared entitled to the office and to be inducted into it. Upon this petition he rendered an order recusing himself and referring the case to C. J. Bradley as parish judge for investigation and decision. This order was rendered on the tenth of February, • 1873. On the second of January previously a suit was insituted in the parish' of St. Helena, one of the parishes of the Sixth Judicial District, by the attorney of the District, against Kemp, praying that he be declared an usurper, and that Ellis be declared legally entitled to the office of district judge.

About the same time a similar action was brought in the parish of Tangipahoa against Bradley in the interest of Addison, claiming to be the lawful parish judge of that parish. This suit was brought in the District Court, and in pursuance of the prayer of the petition, Ellis acting as district judge, granted an injunction against Bradley, prohibiting him from discharging the duties of parish judge. In this state of affairs, on the eighth of March, Kemp filed in the Superior Court- of the parish of Orleans, an application under the act of the Legislature-approved the fifth of March, 1873, numbered 39, to regulate proceedings in contestations between persons claiming judicial office, to have his case against Ellis transferred to that court.

An order was accordingly rendered by the Superior Court, addressed to Bradley as parish judge of Tangipahoa, directing him to transfer the case, which was accordingly done under an order rendered by him on-the eighth of March, 1873. When the case was opened in the Superior Court, the defendant filed a motion to rescind the orders and proceedings under which the transfer of the case was made, alleging as grounds in support of this motion that the provisions of said act No. 39 for transferring causes is repugnant to articles 83 and 90 of the State constitution; that the plaintiff’s order recusing himself and transferring the case to C. J. Bradley, as parish judge, was null and of no effect, because, by the plaintiff’s own showing, he was not at that time the acting district judge of the district; that he could make no _o-’'der in his own case affecting the rights of the defendant; that the -efal parish judge of Tangipahoa was not incompetent to try the-case; that C. J. Bradley was not at the time he made the order of transfer the apting parish judge of the parish of Tangipahoa, and could., not take cognizance of the proceeding in any manner.

The defendant also excepted on various grounds to any action being taken in the case by the Superior Court. He alleges that that court has no jurisdiction ratione materiw or ratione personal, the parties and the subject matter being without the limits of the parish of Orleans, and that the act No. 39, of July 15, 1873, in that respect violates article 83 of the constitution; that it is in violation of article 114 of the constitution, as the different objects embraced in the act are not set out in its title; that it is an ex post facto law; that the same suit for the same object and between the same parties is now pending in. the district court of the parish of St. Helena, and he therefore pleads Us pendens. In his answer to the merits, the defendant alleges that at the general election held on the fourth of November, 1872, he was-duly elected district judge of the Sixth Judicial District, and in pursuance thereof he was regularly commissioned by the Governor of the State, and qualified under that commission by filing his oath of office with George E. Bovee, Secretary of State.

On hearing the case in the court below the judge rendered judgment in favor of the plaintiff and the defendant has appealed. The exception taken by the defendant to the legality of the transfer of the cause-will first be considered. Article 112 of the State Constitution provides that “ the General Assembly shall provide by law for all change of venue in civil and criminal cases.” The principle on which a change of venue is accorded, either in civil or criminal cases, is grounded in considerations of public policy to secure to parties whose' rights are at stake in legal controversies a fair and impartial trial. At the domicile of the parties it not unfrequently happens that partialities exists in the public mind in favor of one of tlie litigants and undue prejudices against the other. One of them through the advantages of wealth, family connections, popularity, or a predominance of political feeling, or some other adventitious circumstance, might have a controlling influence in his own vicinity which would place his adversary at great disadvantage in a contest with him at law. Hence a party-litigant on making a declaration under oath that, from any sufficient-cause specially set forth he fears he would be unable to obtain a fair trial, may obtain a change of venne. Revised Statutes, p. 760. The act No. 39 of March 5,1873, to obviate the difficulties that would ensue from an inability arising from any cause to obtain a decision of a controversy for a judicial office, provides against such a contingency. Section third of that aet provides that “in case of recusation or inability from any cause whatever the judge or judges of the parish or district wherein the persons so contesting shall reside shall be unable to act, then and in that case the plaintiff in said rule may take said-rule before the judge of the adjoining parish or judicial district, or to the Superior Court at New Orleans, as be may deem advisable, and in-cases now pending in wbioli contestation between persons claiming judicial office is the subject matter at issue, either party shall have the right to have his cause removed to the adjoining parish or judicial-district, or to the Superior Court at New Orleans, upon application to the judge of any adjoining parish or judicial district, or Superior Court at New Orleans, and affidavit of the recusation or inability of the judge to act from any legal cause, and upon the party filing- said application and affidavit, the court shall by order direct the removal of such cause, and the record shall thereupon be transferred to the said court; and in case of inability on the part of the party applying to obtain said record, or a duly certified copy thereof, sworn copies of the record may be filed with the court, and the ease shall thereupon he tried in same manner as if the original record was with the court;provided, that before any case so removed at the instance of any party shall be proceeded with, the court making the removal shall require-that the adverse party shall have twenty-four hours’ notice, With an additional twenty-four for every ten miles his place of residence may bo from the court-.”

The plaintiff, as we have seen, filed a suit in the District Court of the parish of Tangipahoa, in the Sixth Judicial District, on the tenth of Eebruary, 1873, setting up claim to the office of district judge of' that district. He brought this action under the act No. 39 of fifteenth of January, 1873. He entered an order recusing himself, and referred. the matter for decision to C. J. Bradley, as parish judge of the parish of Tangipahoa.' A suit under the intrusion act had previously been instituted in the interest of Addison, claiming the office of parish judge of that parish, and in that suit Ellis had rendered an order on the third of January, 1873, granting an injunction prohibiting Bradley from discharging the duties of parish judge of the parish of Tangipahoa. This fact was alleged and sworn to by the plaintiff in his motion before the Superior Court to have the cause transferred to that court. He might have had, for aught that appears, valid objections to having -the case instituted against him under the intrusion act in the interest of his competitor, tried before the parish judge of the parish of St. Helena; at all events that suit did not prevent him from resorting to a different form of action in his own case, and that form which is specially presented by law for the decision of contestations for judicial offices.

Each of these contestants charges that the other is devoid of legal ■right to the office in controversy.

Kemp sets forth in his petition that the defendant, Ellis, “assumes to exercise the duties and functions of district judge of the said Judicial District of Louisiana wrongfully, illegally and in contravention of the rights of this petitioner as herein set forth, pretending and ■claiming to be the judge of said district,” etc.

In the intrusion suit of Ellis against Kemp it is alleged that “William Breed Kemp, of St. Helena parish, has unlawfully set up claim and title to said office, and has usurped and intruded into the same without the shadow of an honest or legal title.” The petition prays that “he be decreed to be an intruder and usurper, and perpetually excluded from said office,” etc. Each of the parties swears to the truth of the allegations in their pleadings.

The parish judge of St. Helena to whom the case of Ellis v. Kemp was referred, granted an order that an injunction issue as prayed for, restraining Kemp from acting or assuming to act as judge of said district.

We conclude that the plaintiff had the right to have the case transferred.

The next inquiry is had C. J. Bradley the right to render the order of transfer?

And now, under the confused state of litigation that appears to exist •in that judicial district in relation to judicial offices, and the contradictory evidence we find in the record, to enable us to decide the question it becomes necessary for us to determine incidentally which of the two claimants of the office of parish judge of the parish of Tangipahoa had prima facie the right to render the order of transfer. Each of these parties, like the contestants for the district judgeship, presents a commission. The commission of Addison is dated December 4,1872, and was issued by Governor Warmoth. Bradley holds the commission ■of Governor Kellogg, dated twenty-fourth January, 1873. We have several times decided that the Warmoth commissions that were issued like the one in the present case, before the general election returns were ■reported and promulgated by the returning officers for the State, are null and void. Bradley, therefore, holding a commission, regular and legal on its face, must be considered as prima facie entitled to the office, .and therefore that he had the right to render the order of transfer.

On the merits the case is to be disposed of under the provisions of the law enacted on the fifth of March, 1873, number 39. The question then is which of the contestants holds the legal and valid commission ? The defendant’s commission was issued by Governor Warmoth on the fourth day of December, 1872, before the general election returns had been officially made out and promulgated as required by law, and before he could legally issue a commission. The court, as was said in the case of Collin v. Knoblock, lately decided, will take judicial cognizance of that irregularity which renders the issuing of a commission null and void, as having been done in contravention of positive law.

The plaintiff holds the commission of Governor Kellogg, issued on the twenty-fourth of January, 1873.

This commission bears prima facie evidence of its genuineness and validity, and nothing to the contrary being shown, must be recognized as having legal force. The reasons assigned in the case of Collin v. Knoblock apply in the general to this case. It becomes unnecessary to pass upon the various bills of exceptions found in the record.

It is therefore ordered, adjudged and decreed that the judgment of the Superior Court be affirmed with costs.

Wyly, J.,

dissenting: This suit for the office of judge of the Sixth Judicial District was brought at the domicile of the defendant in the parish of Tangipahoa. It was subsequently transferred to the Superior District Court, parish of Orleans, and there was rendered the judgment in favor of the plaintiff which a majority of this court affirms.

The first question is, had the Superior District Court jurisdiction of the case?

If the jurisprudence of this State is settled upon any point, it is that a defendant must be sued at his domicile, as provided by article 162, C. P., except in the cases expressly excepted from the operation of that article. It has been repeatedly decided that the law alone gives jurisdiction, and the parties can not by consent supply the want of jurisdiction.

In the ease of Watkins, 21 An. 258, there was a controversy for the office of judge of the Eleventh District Court, and the suit was brought before Judge Levisee, of the Tenth District Court. This court of its-own motion dismissed the suit, because it appeared that Watkins’ domicile was not in the Tenth District, parish of Caddo, but in the Eleventh District, parish of Claiborne; and this court held that because the judge of the Eleventh District Court was interested and could not try the case, it did not follow that the suit might be brought before the judge of tile Tenth District Court; that article 90 of the constitution “has directed how a case may be tried when the judge of the court is interested.”

This article directs that when the district judge is interested in the suit, he shall call upon the parish judge to try the case.

When, therefore, this suit was brought in the district court, parish of Tangipahoa, the district judge, who was interested, very properly entered an order recusing himself, and calling upon the parish judge to try the case. Thus far the proceeding was regular.

Subsequently, to wit: on the eighth March, 1873, the judge of the Superior District Court of the parish of Orleans granted an order requiring the transfer of the case to his court for trial, and in pursuance thereof Judge Bradley, the parish judge of the parish of Tangipahoa, who had been called by the plaint iff to try the case, ordered the transfer thereof, as required by the judge of the Superior District Court, 'i’lie sole ground upon which the transfer was ordered was an averment in the motion and affidavit presented to the Superior District Court, “that the said E. P. Ellis, illegally assuming to be judge of the said judicial district, issued a writ, of injunction, at the suit of one John W. Addison, against the aforesaid Bradley, parish judge, injoining and restraining him from hearing and determining said suit or proceeding instituted by this appearer against the said Ellis, as aforesaid, and that by reason of said injunction said Bradley, parish judge, is unable to act.”

The law upon which the judge of the Superior District Court based his order is section three of act No. 39 of the acts of 1873.

That statute, however, only authorizes the judge of the Superior District Court to order the removal of a cause from the district wherein the parties contesting shall reside, upon the application and “affidavit of the recusation or inability of the judge to act from any legal cause.” * * * * Now the question is, was the parish judge of the parish of Tangipahoa unable to act by reason of the injunction referred to in the motion for removal of the cause 9 Was it in the power of Judge Ellis, the defendant in this suit, to issue an injunction or grant any order preventing the parish judge from trying this case? I think not. If Judge Bradley was the lawful parish judge, as the majority of this court decides, lie had the right to hear and determine the controversy between the plaintiff and defendant for the office of district judge; and no order issued by either of the contestants could destroy the jurisdiction conferred on him by Article 90 of the Constitution. If Judge Bradley was not the lawful parish judge, Judge Addison was, and there was no injunction nor any pretext whatever to defeat his jurisdiction of the case. If it was not in the power of Kemp and Ellis by consent to give the Superior District Court jurisdiction of their case, as was expressly decided in the case of Watkins, how could they, or either of them, grant an order divesting the parish judge of the parish of Tangipahoa of the jurisdiction, expressly conferred by Article 90 of the Constitution. If the case of Watkins and the other decisions of this court on the same subject mean anything, they mean that the jurisdiction of the judge- at the proper forum can not be defeated by any act or contract of the parties. At the time this case was transferred to the Superior District Court the parish judge of the parish of Tangipahoa alone had jurisdiction, and there was no legal cause rendering him unable to act. If Judge Bradley had jurisdiction to order the transfer of the cause to the Superior District Court, it was because he was the acting parish judge; he swears he was the acting parish judge, and if so why had he not jurisdiction to try the case, there being no recusation on his part nor any pretext for a cause of recusation.

In my opinion, a sound construction and indeed the obvious meaning of section 3 of act No. 39 of the acts of 1873 is, that the inability of the judge to act, rendering a removal of the cause necessary, is an actual inability, arising from “a legal cause,” and nob a sham or apparent inability arising, as in the case before us, from an absurd order issued by one of the litigants in the suit pending before the parish judge. There is no pretense that the plaintiff could not get justice before the parish judge of his own district, and this is not made a ground for the order of removal, even if it were a valid one, about which it is unnecessary for me to express an opinion.

The only law upon which the judge of the Superior District Court did or could base his order for removal is section three of the act No. 39 of the acts of 1873, which, in my opinion, as before stated, did not authorize his order, because there was no affidavit of the inability of the parish judge to act arising from a legal cause.. But if there were doubts of this, there is no doubt in my mind that section three of said act is utterly void, because the provision thereof is not covered by the title of the act, as required by article 114 of the constitution. The title of act No. 39 of the acts of 1873 is “ an act to amend and re-enact an act entitled ‘an act to regulate contestations for judicial offices.’ ”

Section three provides for a change of venue or for the removal of causes from one district to an adjoining district, or to the Superior District Court of the parish of Orleans in certain cases, and the object of this section is not mentioned in the title. It is repugnant to article 114 of the constitution and therefore void.

Section one of said act, providing what shall be prima facie evidence of title to a judicial office, is also void, because the object thereof is not set forth in the title as required by said article of the constitution.

Believing that the Superior District Court had no jurisdiction of the case, and that the judgment of a court without jurisdiction is an absolute nullity, I deem it unnecessary to enter upon an elaborate discussion of the merits of the controversy. I will state, however, some of the views which I entertain on the subject.

I do not consider that the question whether the Lynch Returning Board or the Wharton Returning Board was the legal returning board, has ever been decided on its merits by any court of this State, at least so far as it concerns the parties to that controversy, and so far as the question incidentally affects the parties to this suit. The ease between these returning boards was decided in the Eighth District Court in favor of the Lynch Returning Board, but that court granted a new trial, and subsequently dismissed the suit without considering the merits, on the ground that the law under which said board or boards were organized was repealed by the approval by the Governor of the new election law. Neither of the parties to that suit appealed from that judgment, even if it be conceded that the case had finally been decided on its merits. Therefore, as between the contestants in that case, there was no judgment in favor of the Lynch Returning Board. It was A. P. Field, a third party, who alone appealed from that judgment, and as to him alone the judgment was reversed by the decision of the majority, of this court. Both of the contestants being appellees in that appeal, of course there could be no reversal or change of judgment as to them.

Therefore, as to the returning boards, and as to all other parties, except A. P. Field, it has never been decided by any court in this State that the Lynch returning board was the lawful returning board. Indeed, the question has never been presented in a form that it could be considered, except at the first trial in the Eighth District Court, and the judgment rendered at that trial was set aside, as before said, by the judge of that court.

•Plaintiff holds a commission from Governor Kellogg, issued on twenty-fourth January, 1873; and the defendant holds one issued by Governor Warmoth on fourth day of December, 1872.

There is no proof in the record that the returns of the November election had been canvassed by a legal returning hoard before either of these commissions issued. I think the majority of this court errs in taking judicial notice that the election returns had been legally-canvassed when Governor Kellogg commissioned the plaintiff, and they had not been legally canvassed when Governor Warmoth commissioned the defendant.

In the absence of proof to the contrary, I think this court is bound to presume that Governor Warmoth did his duty, and that the truth is, as recited in his commission to Judge Ellis, of the fourth December, 1872, that “at a general election held on the fourth day of November, 1872, in conformity with law, E. P. Ellis was declared duly elected district judge in and for the Sixth Judicial District,” * * * Hero is a recital in a commission issued by the Governor in the name and by the authority of the State of Louisiana, attested with the great seal of the State, and it stands uncontradicted by any proof in the record.

But it may be urged that the same recital is in the commission ^issued to Judge Kemp on the twenty-fourth of January, 1873. To this a sufficient reply is, that the first commission issued to an officer whose term of office, fixed in the Constitution, has not expired, is at least prima fade the best title to the office. It devolves upon the party presenting the second or a later commission to show affirmatively the invalidity of the title acquired under the first.

In this ease the plaintiff has not introduced a particle of proof to invalidate the title of Judge Ellis to the office. He simply presents his commission and asks the court to presume that he is right and that his adversary is wrong; that the commission of Governor Kellogg is a prima fade title to the office, but that the prior commission issued by Governor Warmoth is not a prima fade title to the office. He has not proved that the returns had not been legally canvassed when the commission issued to Judge Ellis, nor has he proved that they had been legally canvassed when the commission issued to him. He shows no infirmity in the title of his adversary, but merely sets up a title of the same character and of a later date.

In my opinion the commission issued to Judge Ellis on the fourth day of December, 1872, was a prima fade title to the office -, it was a title that authorized him to administer the office, at least until a better one was adduced; and that it devolved upon the plaintiff attacking this title to prove affirmatively the facts necessary to defeat the same.

Judge Ellis was the district judge at the time of the election, and was entitled, under Article 122 of the Constitution, to continue to discharge the duties of the office, if neither his adversary nor himself showed a valid title under the election of 1872.

There are several important bills of exceptions in the record taken by the defendant which the court has been urged to consider.

The defendant offered several witnesses to prove that the returns of the election in the Sixth Judicial District were never in possession of the Lyncli Returning Board. Also he offered the witness James Longstreet, who was a member of that board, to prove that they did not canvass the legal returns of the election made by the supervisors of registration and election in the parishes of Washington, Livingston, St. Tammany, St. Helena and Tangipahoa, and to show that said returns of election from said parishes were never before or in possession of said board, and to prove that no legal quorum of said board was present or acted upon the returns of said election in and for said Sixth Judicial District, and that if any returns were made by them of said election in said Sixth District, and any declaration of the election of the plaintiff, that said returns and declaration were based upon exporte affidavits, rumors and hearsay, and not upon any official returns.” * * *

I think this testimony under the pleadings was admissible and the bills of exceptions were well taken.

It was certainly competent lor the defendant to prove that the election returns of the Sixth Judicial District had never been canvassed by the Lynch Returning Board, and that said returns were never in their possession, as an offset to the pretensions of the plaintiff that he had been returned as elected by said board. This proof in no manner contradicted the official report of said board, because the same, if made, was not introduced in evidence.

The position of the plaintiff in this case is most extraordinary. He asks the court to presume that the legal returning board had not acted when Governor Warmoth commissioned the defendant, and that they had acted, and favorably to him, when Governor Kellogg commissioned him. He asks the court to presume that Governor Warmoth acted in bad faith and that Governor Kellogg acted in good faith in reference to the issuance of these commissions. He proposes to go behind the commission issued by Governor Warmoth to inquire whether it was based upon the report of the returning board, but he resists the proof of the defendant that his own commission was not based on the returns of the i eturning board.

Placing the merits of his case upon the presumed favorable report of the Lynch Returning Board, he offers no proof of their canvass and favorable report in his behalf, but resists, and succeeds in getting the court to exclude the testimony offered by the defendant to prove that no returns had been made from the parishes composing the Sixth Judicial District, and there was no canvass thereof by the Lynch Returning Board. He asks the court to take judicial notice that the Lynch Returning Board was the legal returning board; that they had received and canvassed the returns from the Sixth Judicial Distrct, that they had reported in his favor and against the defendant, and that Governor Kellogg’s commission to Mm was based upon this favorable report of tlie Lynch Returning Board. Besides all this he demands the exclusion of all the testimony offered by the defendant to ‘disprove the presumptions which he claims in his favor, and to disprove the facts of which he contends this court must take j udicial cognizance. In these extraordinary pretensions he was maintained by the judge of the Superior District Court and by tlie majority of this court.

With all due respect for the views of my learned associates, I feel constrained to differ with them in the conclusion to which they have arrived, and'for the reasons stated I dissent in this case.

Rehearing refused.


source: Caselaw Access Project

author: Taliaferro, J. Wyly, J.,

license: Public Domain

text:
    No. 4635.
    Fred. Collin v. J. W. Knoblock. J. W. Knoblock v. Fred. Collin. (Consolidated).
    Under tlie intrusion into office act, it does not appear that authority was conferred upon the courts to go beyond an investigation of the titles set up by the contestants for the office in controversy.
    A review of all the cases adjudicated by this court under the intrusion act will show, that, in every instance, not one will be found which depended for its solution upon the inquiry as to which of the contestants obtained the larger number of votes.
    Tho adjustment and compilation of election returns, determining tho number of legal and illegal votes cast for each candidate, declaring the result of an election and iurnishing the successful candidate with the proper certificate, in short superintending and controlling all the details of an election belong properly to the political department of the Government.
    It is only under tho statutory provision of 1835, that courts can proceed, in relation to parish offices, and through tho agency of juries, to supervise the counting of votes, correct calculations, purge the polls of illegal votes, ascertain and establish majorities. It is confined to cases where no commissions have issued.
    ‘The subject matter of proceedings under the intrusion act is widely different from that or the statute of 183 >. In cases under the intrusion law, courts can not go beyond commissions legally issued.
    Ko authority is delegated to the judiciary under the intrusion act, to discuss, modify or abolish tho official returns of tho regular State returning officers. Such a right can not be assumed as an implied power.
    "With the character of laws as being odious, or entitled to favor, courts have not to deal.
    This court will take judicial cognizanco of the fact that on the fourth day of December, 1872, tho date of the "Warmoth commission to Knoblock, the official returns of the election had not been promulgated, and therefore that the issuing of the commission was a nullity.
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Beltie, J.

      Louis Bush, Olay Knobloelc aud John Billin, for appellee. J. L. Belden, for appellant. T. L. Winder, as district .attorney.
    Justices concurring: Lndeling, Taliaferro, Howell, Morgan.
   Taliaferro, J.

This is a controversy under the intrusion act for the office of parish judge of the parish of Lafourche, each of the contestants claiming to have been elected to that office at the general election held in November, 1872. Judgment was rendered in favor of Knoblock, and Collin has appealed.

Under the intrusion into office act, we do not find authority conferred upon the courts to go beyond an investigation of the titles set up by the contestants for the office in controversy. The time at which the law was enacted and the circumstances which required its enactment-show clearly that it contemplated cases only where the parties held adverse muniments of title importing right in the holders to the office contended for, to cases where each of the parties held a commission, or where one of the litigants claimed by certificate of election and the-other by appointment, exhibiting his. commission and setting up the-ineligibility of his adversary. The intrusion law was passed in October, 1868. Previous to and subsequent to that time persons were frequently elected to offices to which they were ineligible by reason of tho disabilities then imposed by law upon them from having been active participants in the late rebellion. Others, claiming these offices under appointment and holding commissions as evidence thereof, could resort to this law to have these conflicting claims judicially decided. But the question in eases of that class was simply the eligibity of one of the parties and the validity of the other’s commission. We think a review of all the cases adjudicated by this court under the intrusion act will show that in every instance the issues were as we have stated them, and that no case will be found which depended on its solution-upon the inquiry as to which of the contestants obtained the larger number of votes. The adjustment and compilation of election returns, determining the number of legal and illegal votes cast for each candidate, declaring the result of an election and furnishing the successful candidate with the proper certificate; in short, superintending and controlling all the details of an election, belong primarily and properly to the political department of the government.

This court in the case of the State v. The Judge of the Second District Court, 13 Annual SO, Judge Spofford being the organ of the court, well remarked: The contesting of votes is not a judicial function only so far as made such by special statute. Indeed, some may have-gone so far as to question whether this is not wholly a matter of administration, which can not, with propriety, be referred to the judicial tribunals at all. At any rate it is clear that such tribunals can not usurp any greater control over this business than is specially imposed upon them by law. In the absence of a statutory authorization they are without jurisdiction of the matter ratione materia.”

The Legislature of this State did, by statute, in 1855, delegate to-the district courts the power to decide through the agency of juries, contested elections in regard to parish officers. The jury in such cases-has the right to delermine which of the parties is entitled to the office, or to refer the matter again to the people to be settled by a new election. Revised Statutes, pages 279, 280, 281, 282. Under this statute-: the court and jury are clothed with power to examine the grounds of the contestation, and go into all the details of the election necessary to ascertain which candidate received the majority of the legal votes polled at the election. But it is only under this statute that courts can proceed to supervise the counting of votes, correct calculations, purge the polls of illegal votes, and ascertain and establish majorities. It is confined to cases where no commissions have issued. It expressly requires that the contestation shall commence within ten days; that it shall be conducted summarily, and directs the withholding of commissions until the investigation may be completed and the result legally proclaimed.

The subject matter of proceedings under the intrusion act is widely different from that of the statute of 1855. In eases under the intrusion law courts can not go behind commissions legally issued. To determine the validity of a commission they can not under this act go beyond the returns and report of the legal returning officers for all the elections of the State. The returns made by a legal State Board and officially promulgated by that Board as the general returning officers for the State at large, constitutes the basis upon which the Governor is authorized to issue commissions. These returns are, by the act of sixteenth March, 1870, made grima fade evidence in all courts of justice and before all civil officers until set aside, after a contest according to law of the right of any person named therein to hold and exercise the office to which he shall by such return be declared elected.” y

This grima fade evidence, it is provided, may be rebutted and set aside; but this, we apprehend, could only be done by proceedings under the statute of 1855. No authority is delegated to the judiciary under the intrusion act to discuss, modify or abolish the official returns of the regular State returning officers.

As we have already said, it is well settled that the judiciary have no warrant of authority to exercise jurisdiction in matters of elections unless it be expressly delegated by the co-ordinate branch of the Government controlling the political department, and no express authority is granted under the intrusion act to inquire into the correctness of election returns officially promulgated by the legal returning officers.. Such a right can not be assumed as an implied power.

The act of 1870, numbered 100, approved March 16, 1870, is the general law under which the elections held at the general election in November, 1872, were conducted, and which controlled as to the formalities of revising and compiling the returns from every part of the State and the making and promulgating the final report.

It may be remarked here that in the case we have referred to in 13 Annual 90, it was held by Judge Spofford that out of the parish of ■Orleans there was no law providing for a judicial scrutiny into the votes for any other than parish officers.”

With the character of laws as being odious or entitled to favor, courts have not to deal. If the statute of 1870 is liable to grave criticism it is no fault of the judicial tribunals. It is not for them to declare it infamous even if it be so. But it is their .duty to give it effect as a law wherever its provisions apply.

Under the views we have expressed we conclude that in this action, under the intrusion act, the court a qua have improperly gone into the inquiry in regard to the details of the election held in the parish of Lafourche in November, 1872, and the correctness of the official returns promulgated by the returning officers for the State. The contest is therefore limited to the simple question of which of the contestants holds the legal and valid commission. Knoblock presents a commis.-sion issued by H. C. Warmotli, Governor, on the fourth of December, 1872. Ilis competitor, a commission issued to Mm by P. B. S. Pinch-'back on the 17th of December, 1872. We take judicial cognizance of the fact that on the fourth day of December, 1872, the date of the Warmoth commission the official returns of the election had not been promulgated, and therefore that the issuing the commission was a nullity. The other commission is-not liabie to this objection and bears jprima facie proof of its validity and must be recognized.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further -ordered and adjudged that there be judgment in favor of Frederick Collin; that he be decreed entitled to exercise the duties of the office of parish judge of the parish of Lafourche, and in that capacity to receive the salary and emoluments thereunto appertaining. It is further ordered that J. W. Knoblock pay costs in both courts.

Wyly, J.,

dissenting: Collin v. Knoblock, No. 4635; Franklin v. Allain, No. 4634; Nicol v. Webre, No. 4633; Comeaux v. Leblanc, No. 4632. — In each of these cases I dissent, for the reasons given in my dissenting opinion in the case of the State ex rel. J. M. Bonner v. B. L. Lynch, this day decided.


text:
    No. 4647.
    State ex rel. John M. Bonner v. B. L. Lynch.
    'The defendant having been returned hy the legal returning hoard of the State as elected judge of the Fourth District Court of hfew Orleans, and upon that return the Acting Governor having issued a commission to him according to law, it can not he said that one holding an office under such a commission has intruded into, or unlawfully holds the office.
    hfo statute conferring upon the courts the power to try cases of contested elections or title to office, authorizes them to revise the action of the returning hoard.
    'The only power the courts have undor the intrusion into office law is to decide if one or neither of the contestants has a legal title to the office, and the commission of each is tho evidence of that fact.
    APPEAL from the Superior District Court, parish of Orleans. 3aw-Idns, J.

      A. P. Field, Attorney General. 3. J. Grover, W. JIT. Randolph, John 3. Neiv, for relator and appellant. F. Filleul, 3. O. Píbhle and W. 3. Oooley, for respondent and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell, Morgan.
   Taliaferro, J.

This is a suit brought under the intrusion act, in the name of John M. Bonner, alleging that at the general election held in November, 1872, he was elected Judge of the Fourth District Court, of New Orleans, having received a plurality of the votes polled for that office, there having been three candidates, T. J. Cooley, B. L. Lynch, the defendant, and himself. That notwithstanding he was duly elected to said office and commissioned by Ii. C. Warmoth, Governor of the State, the defendant has intruded into and taken possession of the said •office, and is unlawfully holding and exercising the duties thereof. -He prays to be recognized as Judge of said Fourth District Court, and to be put into possession of the same; that the defendant be decreed an usurper of that office and his pretensions thereto be rejected and not allowed.

The defendant excepted to the proceeding taken against him by the relator on several grounds, among which are the following:

That tho relator shows no cause of action; that the matters alleged are not of judicial cognizance; that the contesting of votes is not a judicial function, and the court is without jurisdiction ratione materiw ; that the statute under which the relator aims to proceed dors not .embrace his case; that he is therefore without a standing in court.

The defendant answered by a general denial. He alleges that he was duly elected to the office claimed by the relator, and returned elected by John Lynch, James Longstreet and George E. Bovee, the board of returning officers, and in pursuance thereof that he was duly ■commissioned by the Acting Governor, P. B. S. Pinchback.

The exceptions were sustained and the suit dismissed. The relator 'has appealed.

The relator shows a commission from Governor H. C. Warmoth, dated tlie thirtieth of November, 1872. The defendant produces a commission from Acting Governor Pinehback, dated the sixteenth of December, 1872.

We decided in the case of ELennard v. Morgan, and again in the case’ of Hughes v. Pipkin, that the board of returning officers composed of John Lynch, George E. Bovee, James Longstreet and Jacob Hawkins, was the legal returning board of the State at the late November election. That board, it appears, returned the' defendant, Lynch, as-elected judge of the Fourth District Court of New Orleans, and upon, that return the Acting Governor issued a commission to him according to law. One holding an office under such a commission can not be-said to have intruded into or to unlawfully hold the office. But it is-said that the returns are only prima facie proof of the results of the election. That is true. The question, however, as to the election o^ officers is a political question, and courts of justice have jurisdiction-over them only so far as the political department may have authorized them to exercise jurisdiction. If there were no statute authorizing the trial of contested election cases before courts, they would be without authority to do so. 13 An. 90.

No statute conferring upon the courts the power to try cases of contested elections or title to office authorizes them to revise the action of the returning board. If we were to assume that prerogative, we-should have to go still further, and revise the returns of the supervisors of elections, examine the right of voters to vote, and, in short, the courts would become in regard to such cases mere offices for counting, compiling and reporting election returns. The Legislature has seen proper to lodge the power to decide who has or has not been elected in the returning board. It might have conferred that power upon the courts, but it did not. Whether the law be good or bad, it it is our duty to obey its provisions, and not to legislate.

The only power the courts have under the intrusion into office law is to decide if one or neither of the contestants has a legal title to the office, and the commission of each is the evidence of that. It is alleged in the relator’s petition that B. L. Lynch was returned as elected to the office of Judge of the Fourth District Court, and that he was commissioned by the Governor. Having no power to revise the action of the board of returning officers, we have nothing to do with the reasons, or grounds upon which they arrived at their conclusion.

Admitting everything alleged in the petition to be true, it appears that B. L. Lynch was returned by the legal returning, board as liavingbeen duly elected Judge of the Fourth District Court of New Orleans, and commissioned thereupon by the acting Governor of the State, and, therefore, it is shown that the petition discloses no cause of action.

For these reasons, and for those we have given more at large in the.•case of Collin v. Knoblock, just decided, we think the defendant entitled to judgment in his favor. It is therefore ordered, adjudged and ■decreed that the judgment of the District Court be affirmed with costs.

Wyly, J.,

dissenting. This is a suit brought by the Attorney General under the “ intrusion act” in the name of the State, with John M. Bonner joined as plaintiff, against the defendant, B. L. Lynch, to exclude him from the office of Judge of the Fourth District Court, on the ground that he usurped', intruded into and unlawfully holds said office, -and to have said Bonner declared entitled to said office and inducted into the same.

The petition alleges that Lynch is a usurper ; that he claims to hold -said office under color of a commission from acting Governor Pinchback, dated sixteenth December, 1872, based on what purports to be the returns of election held in the city of New Orleans on the fourth of November, 1872, and published in the New Orleans Bepublican of the ■fifteenth December, 1872, over the signature of John Lynch, James Longstreet and George E. Bovee, acting as a board of returning-•officers.

It further alleges that the said commission was issued to the said B. L. Lynch through error, and was based on incorrect returns of said elee-fcion; that at said election B. L. Lynch was not elected by a plurality of the votes polled, but that John M. Bonner, who is joined as plaintiff in the action was; that the office of Judge of the Fourth District Court legally and of right belongs to John M. Bonner, and that he is the proper person to perform the duties and draw the salary of said office.

It alleges that the election that was held in the" city of New Orleans ■on the fourth of November, 1872, was conducted in accordance with law and was free from violence, disturbance or undue influence of any kind ; that at said election, John M. Bonner received 14,033 legal votes, B. L. Lynch 12,834 votes, and Thomas J. Cooley 9554 votes, and that John M. Bonner, having received a plurality of 1167 votes, was lawfully ■elected judge of the Fourth District Court for the parish of Orleans.

The petition then goes into details, and avers that four hundred and ninety-nine good and legal votes were deposited in the ballot box for John M. Bonner, but were not counted by the Supervisor of Begistration and Commissioners of Election, and placed on the sworn lists and statements to be forwarded to the Governor and canvassed by the Beturning Officers; that twenty-five of these votes were excluded from the count because the name of the co-plaintiff was misspelt or the initials not properly given, and four hundred and seventy-four ballots were excluded on the alleged ground that the number of ■the precinct or ward was not written or printed on the outside fold thereof; that the absence of this formality did not authorize the-Supervisor of Registration and the Commissioners of Election to refuse-to count these ballots after they had been voted and placed in the ballot-box ; that of the ballots thus excluded four hundred and seventeen were on what was known as the Duvigneaud Ticket, whereon John M. Bonner was the candidate for Judge of the Fourth District Court, and fifty-seven were on what was called the Haley Ticket; that-the co-plaintiff is now entitled to have these four hundred and ninety-nine ballots counted and added to the other votes received by him. Tiie Commissioners of Election and Supervisor of Registration further erred in counting and not excluding the ballots found in poll eight, of the Third Ward; that a simple inspection of this ballot box conclusively showed that it had been stuffed ; that the proper affidavits and the requisite legal proof were made for the exclusion of this poll, and this poll should have been excluded from the count of votes and the final canvass by the Returning Officers; that by improperly including this poll eight of the Third Ward in the count and canvass, three hundred and forty-two votes were added to the number received by the defendant, B. L. Lynch, which should have been excluded altogether.

But that, leaving out the four hundred and ninety-nine ballots that-were deposited in the ballot box for J. M. Bonner, and not counted, which should have been added to the vote received by him, and counting for B. L. Lynch the three hundred and forty-two ballots found in poll eight of the Third Ward, which should have been excluded and not counted, J. M. Bonner still received a plurality of the votes cast of more than six hundred.

The petition further alleges that the returns of election compiled by John Lynch, James Longstreet and George E. Bovee, and published in the New Orleans Republican oí fifteenth December, 1872, are wholly incorrect and untrue; that by said returns B. L. Lynch is stated to have received twelve thousand nine hundred and forty-five votes,. Thomas J. Cooley eight thousand nine hundred and seventy-two votes and J. M. Bonner twelve thousand five hundred and seventy-threo votes. But this is not a true and correct compilation and canvass of the votes cast for these respective parties, according to the sworn list or statement made by the supervisors of registration; that the said Lynch, Longstreet and Bovee, acting as returning officers, arbitrarily and without authority of law neglected and refused to make a full and complete canvass of the votes cast, but without any proper evidence or just cause excluded from their returns the entire ballots of' several polls which they refused to canvass.

The petition avers that the only poll out of the one hundred and fifteen, into which the precincts of the parish of Orleans were divided,, for which there was legal -cause for exclusion of votes was poll eight Third Ward : that the said Lynch, Long-street and Bovee should have excluded from their canvass the votes of this poll, bub did not;, that there was no legal cause for the exclusion of the votes of any other poll, and that they did not have in their possession any legal-evidence, such as would justify them in excluding from their canvass-the votes of any other poll. These returning- officers arbitrarily excluded from their canvass the ballots of certain polls in the Second, Third, Fourth and Twelfth Wards, and the petition gives the number of votes excluded and not canvassed in each of these and the other wards.

The petition also avers that John M. Bonner was appointed and duly commissioned on the thirtieth of November, 1872, as Judge of the-Fourth District Court, vice Judge Théard, who had resigned; that he accepted said appointment and acted thereunder ; that subsequent to said appointment Governor Warmoth became satisfied that the co-plaintiff, John M. Bonner, had received the plurality of the votes cast at the election for the office of Judge of the Fourth District Court, and issued a commission to him to that effect on the fifth of December, 1872; that these commissions were in due form, and that said Bonner was acting under the same when he was illegally and forcibly ejected from said office on the sixteenth of December, 1872; and that said B. Lynch has been usurping and unlawfully exercising the functions and drawing the salary of the office of Judge of the Fourth District Court since said date.

These are the averments of the petition.

In bar of the action the defendant pleaded the exceptions that the petition discloses no cause of action ; that the matters alleged are not of judicial cognizance; that the contesting of votes is not a judicial function; therefore the court is without jurisdiction ratione material; and that this suit is not authorized by the intrusion act, under which it was brought.

On these exceptions the case was dismissed in the court below, and it was brought to this court on appeal.

I have stated the averments of the petition fully, because the defense is that the petition discloses no cause of action.

Taking the allegations of the plaintiffs to be true (as we must in this trial) I think they show a good cause of action.

The law under which the suit was brought, to wit: act No. 156 of the acts of 1868, is remedial and should therefore be construed liberally.

But giving the statute the strictest construction, in my judgment, it fully covers the case presented for examination.

The purpose of the statute, as expressed in the title, is to provide a remedy against usurpations and intrusions into, or the unlawfully holding or exercising a public office or franchise.” It authorizes a suit-.to be brought by the Attorney General in the name of the State •“when any person usurps, intrudes into, or unlawfully holds any public office.”

It provides that service shall be made as in other civil suits, that ■“ the answer shall be filed within legal delays, and such cases shall be tried in preference over all other cases, without being fixed for trial .after issue joined.” It authorizes the Attorney General to join as .plaintiff the person interested, and “ in addition to the statement of the cause of action he may also set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto;” and “if the judgment be against the defendant, and rendered upon the right of the person so alleged to be entitled, and .the same be in favor of such person, he shall be entitled, after taking the oath of office and otherwise complying with the requirements of law, to take upon himself the execution of the office; and it shall be his duty immediately thereafter to demand of the defendant in the action all the books and papers pertaining to said office.”

It occurs to me that nothing is plainer than that the law authorizes the suit now before the court; that it expressly provides the remedy which the plaintiffs seek in their petition. If all the allegations of the petition be true, (and such must be conceded on the trial of these exceptions,) B. L. Lynch is unlawfully holding the office of Judge of the Fourth District Court, and John M. Bonner is “ rightfully entitled” to the same. The law expressly authorizes the inquiry raised in the petition whether Lynch or Bonner is rightfully entitled” to the office. This rightfulness depends not upon the question who holds the certificate of the Board of Canvassers, but upon the question who was elected by the people. The constitution requires the district judges to be elected; and if Lynch in fact was not elected, although holding the certificate of the Returning Board, he is not rightfully entitled to the office and is unlawfully holding the same.”

“ A person derives his title to an office by his election, and not by his commission; and if he holds and exercises the functions of an office without having been legally elected, it is an unlawful holding, and he may be ousted at the instance of the State notwithstanding his commission.” Bashford v. Barstow, 4 Wis., 567; State ex rel. Attorney General v. Steers, 44 Missouri, 223.

In order, therefore, to determine who is rightfully entitled to the office, it is necessary to look behind the certificate of the Returning Board, because the allegations (which must be taken as true) are, that the canvass was illegal, that the certificate is untrue, and that Bonner received, at least, six hundred more legal votes than Lynch and was actually elected.

Now, the important question is, can the court- look beyond the certiíicate of the Returning Board ? If we can not, there is an end of the case; if we can, the peremptory exceptions must be overruled and the case remanded to the lower court for trial on the merits. As far as my examination extends all the authorities seem to agree that the duties of the Returning Board or the Board of Canvassers are ministerial and not judicial; and such being the case, the legality of their canvass can be examined into by the courts.

Mayo v. Freeland, 10 Mo. 629; State v. Harrison, 38 Mo. 540; State v. Rodman, 43 Mo. 256; Ex parte Heath, 3 Hill 42; Bower v. O’Brien, 2 Ind. 423; People v. Hilliard, 29 Ill. 413; People v. Jones, 19 Ind. 357; Ballou v. York. 13 Shep. 419; Thomson v. Circuit Judge, 9 Ala. 338; People v. Kilduff, 15 Ill. 492; O’Farrel v. Colby, 2 Minn. 180; People v. Van Cleve, 1 Mich. 362; People v. Van Slyck, 4 Cow. 297; Morgan v. Quackenbosh, 22 Barb. 72; Disben v. Smith, 10 Iowa, 212; People v. Cook, 14 Barb. 259; 4 Seld., S. C. 67; Hart v. Harvey, 32 Barb. 55; Attorney General v. Barstow, 4 Wis. 567; Attorney General v. Eli, 4 Wis. 420; State v. Governor, 1 Dutch 331; State v. Clerk of the Passaic, 1 Dutch 354; Marshall v. Kerns, 2 Swan 68; People v. Pease, 27 N. Y. 45; Head’s case, 25 Ill. 325.

The intrusion law, as we have seen, authorizes the Attorney General to bring a suit, like the one at bar, when any person shall usurp, intrude into, or unlawfully hold any public office or franchise;” and it permits the inquiry to be made, who is rightfully entitled” to the office?

Here I think the law has given the plaintiffs in this case ample power to bring and prosecute this suit, because it clearly authorizes a suit of this character “when any person” shall “unlawfully hold any office ” in this State.

With this law in force, can we say there is no relief for the plaintiff? I think not. With the strictest construction, the “ Intrusion Act,” in my judgment, furnishes the State ample means to oust the defendant, who is accused of unlawfully holding the office of Judge of the Fourth District Court, which accusation must be regarded as true for the purposes of this trial. But where do we find the law putting- the frauds and the illegal canvass of the returning board beyond the reach of judicial inquiry? Where is the law authorizing it to disregard the will of the people and set up its own arbitrary decision, the correctness of which cannot be inquired into ?

There is no such law to be found. If there were, the members of this board would be the masters, not the servants of the people. The only powers of this board are found in act No. 100 of the acts of 1870, the act creating it. This statute will be searched in vain to find the extraordinary powers claimed in oehalf of this returning board. Not one word will be found in that law placing the illegal acts of that board beyond tbe reach of judicial inquiry. On the contrary, after defining the duties of these ministerial officers the statute declares that: “ The returns of the elections thus made and promulgated shall be primeo fade evidence in all courts of justice and before all civil officers, until set aside, after a contest according to law of the right of any person named therein to hold and exercise the office to which he shall by such return be declared to be elected.”

In the face of-this language how can it be pretended that the returns of this board can not be set aside by the courts in a contest according to law ?

Is not a suit under the “intrusion act ” a contest according to law, by which the State can inquire whether any of her offices are usurped, intruded into, or unlawfully held 9

In this proceeding the State simply proposes to inquire whether Lynch unlawfully holds the office of judge of the Fourth District Court, alleging that he did not receive a plurality of the legal votes cast, and therefore was not elected. Now, there is no doubt tbe “intrusion act” permits the State to make the inquiry and it authorizes the court to decide whether Lynch is “rightfully entitled” to the office; that is, whether he actually received a plurality of the legal votes cast.

The right of the State to recover in this case in no manner depends upon the strength of Bonner’s title.

But under the law the Attorney General had the right to join him as plaintiff and set up in the petition a statement of his right to the office. Now, what is the attitude of the defendant in this ease? By his exceptions he admits that he did not receive a plurality of the legal votes cast; he admits that he received the certificate of election by the arbitrary and illegal' canvass of the returning board; that his commission issued to him through error; that Bonner was elected and is rightfully entitled to the office. But still he contends that in the-face of all these admissions there is no law in Louisiana by which he can be ejected from the office he confessedly usurps and unlawfully holds.

If such were the case it would be a burning shame and a disgrace to Louisiana.

In my judgment the law is ample to give all the relief which the plaintiffs claim at our hands. In this opinion I am not alone, but I am supported by high authority, viz: the Supreme Courts of New York and California, where the same statute prevails. Indeed, our-Legislature in 1868 borrowed the intrusion act from New York, copying it word for word, as will be seen by examining the second volume of the Revised Statutes of New York of 1852, page' 554, paragraph 432-

Now when the Legislature borrowed the law, is it not fair to presume it intended the law to be construed as its language plainly indicates its purpose to be, and as it was understood and interpreted by the Supreme Court of New York.

In the People v. Pease, 27 N. Y. 45, the court say: “ An action is prescribed in the nature of a quo warranto, to determine as well the question of usurpation of the person in office as the claim of the person asserting his right thereto.

“In this action the determination disposes as well of the public interest as the private right. It is not of so much importance so far as the public is concerned, which of two claimants shall discharge the duties of an office; but the private right of an individual to the fees and emoluments of an office is properly and legitmately the subject of judicial cognizance, and to adjudicate upon this right it becomes essential to determine who was legally and duly elected or appointed to it, and who is entitled to discharge its duties and receive and enjoy its fees and emoluments. The provisions of the code, in reference to this action, are ample to cover and secure as well the interests of the public as the private rights of the parties. The determination of those rights necessarily leads to an investigation into the title of the claimant to the particular office, and such an investigation must result in a determination of the legality of the election. * *

“ And the certificate of the board of canvassers authorized to canvass the votes given for an elective office, is made evidence of the election of the person therein declared to be elected. But such certificate is only jprima fade evidence of the title of the person receiving it, to the office therein mentioned. In all cases where the proceeding is by quo warranto, or in an action of that nature, it is held that such proceeding is instituted to try the right to the office directly, and it is competent to go behind the certificate, which would otherwise be conclusive, to ascertain- the real facts of the case. (The People v. Seaman, 5 Denio 409; People v. Fergurson, 8 Cow. 102; People v. Van Slyck 4 Cow. 297; People v. Wail, 20 Wend. 12.) * * * * *

What is it that confers title to the office and the legal right to the reception of its emoluments? It surely is the fact that the greatest number of qualified voters have so declared their wishes at an election held pursuant to law. It is not the canvass or estimate, or certificate which determines the right. These are only the evidences of the right, but the truth may be inquired into and the right ascertained. When it is so ascertained, the legal consequences follow that the person usurping the office is ousted, and the person legally entitled .takes the office and its fees. * * * * *

“ It is urged, however, that the act of the inspectors, in receiving and depositing the ballot is judicial, and therefore can not be reviewed in this action. It is supposed that the contrary is satisfactorily shown, and that the universal practice of the courts, in actions or proceedings like the present, where they have inquired into the very right of the case, refutes this assumption. In The People v. Van Slyck it was urged by the counsel of the defendant that the certificate of the determination of the board of canvassers was conclusive evidence of the election; that it could neither be impeached nor contradicted; that the authority exercised by the board of canvassers was judicial, and that if the Supreme Court had jurisdiction to review the determination of the board of canvassers, their reviewing power could only be exercised through the medium of a certiorari; and until reversed in this form it remains valid and conclusive, and can not be questioned by an information in the nature of a quo warranto. These views were repudiated by the court in that case, which held that the act of the canvassers was not judicial, but merely ministerial, and that the trial in quo warrcmto is had upon the right of the party holding the office. This doctrine was promulgated nearly forty years ago in this State, and has been acquiesced in and sustained in all cases, and it ought not now to be disturbed.”

In The People v. Holden, 28 California 123, where the controversy was, under the intrusion law, for the office of county judge, the court say:

“ It is first claimed by the appellant that the district court had no jurisdiction in the premises, and that the only remedy in cases like the present, is under the statute which prescribes the mode and manner of contesting elections. No proposition could be more untenable. It is true the act providing the mode of contesting elections confers upon any elector of the proper county, the right to contest, at his option, the election of any person who has been declared duly elected to a public office to be exercised in and for such county; but this grant of power to the elector can in no way impair the right of the people in their sovereign capacity, to inquire into the authority by which any person assumes to exercise the functions of a public office or franchise, and to remove him therefrom, if it be made to appear that he is a usurper, having no legal right thereto.”

“ The two remedies are distinct, the one belonging to the elector in his individual capacity as a power granted, and the other to the people in the right of their sovereignty. Title to office comes from the will of the people, as expressed through the ballot box, and they have the prerogative right to enforce their will, when it has been so expressed, by excluding usurpers and putting in power such as have been chosen by themselves; to that end they have authorized an action to be brought in the name of the Attorney General, either upon his own suggestion or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds any public office, civil or military, or any franchise "within this State. See also People v. Jones, 20 California, page 50; Searcy v. Grow, 15 Cal. 117; People v. Cook, 8 N. Y. 67; People v. Van Slyck, 4 Cowan 297; People v. Vail, 20 Wend. 12.

Our intrusion act authorizes a proceeding in the nature of a quo warrcmto. And under this writ all the authorities agree that a usurper can be excluded from office, and to determine tbe question of usurpation the courts have ample power to go behind the commission and the certificate of the Board of Canvassers.

In Carpenter v. Ely, Fourth Wisconsin 420, where the controversy was for the office of district attorney, the court say : “ The duties of these canvassing boards are in the main ministerial. Attorney General v. Barstow, 4 Wis. 567; People v. Van Slyck, 4 Cow. 322; Ex parte Heath, 3 Hill 42; People v. Stevens, 5 Hill 616. But perhaps the board of county canvassers might have canvassed the total vote, notwithstanding the informality in the return.

Conceding, however, the county board decided correctly upon tbe facts before them, in this proceeding, we are bound to go back and rectify this mistake or omission and count the vote; for it is the election by a plurality of votes which constitutes the right to an office, and that can not be defeated by the mistake, negligence or misconduct of the canvassing boards.” And the court held that the relator received a plurality of the legal votes cast for the office and “ effect must be given to this election, notwithstanding the certificate of election had been given to tbe respondent. A canvassing board can not create a right to an office ; that must be ba§ed upon an election.”

In the State v. Steers, 44 Missouri, where the controversy was for the office of sheriff, the court say: “ To determine upon the legality of votes is a judicial proceeding before a competent court to hear and adjudicate, where the parties interested can appear and present their respective claims. To allow a ministerial officer arbitrarily- to reject returns, at his mere caprice or pleasure, is to infringe or destroy the rights of parties, without notice or opportunity to be heard; a thing which the law abhors and prohibits. * * * The exercise of such power is subversive of the rights of the citizen and dangerous and fatal to the elective franchise.” 44 Missouri 223; Howard v. Shields, 16 Ohio 184; Ewing v. Thompson, 43 Pennsylvania 372; Jenkins v. Waldron, 11 John. 114; 6 Cow. 456; 23 Cow. 228.

This is the first time the question has been presented to this court; but it seems to have been presented often to tbe Supreme Court of other States of the Union, and with singular unanimity they all hold that the courts have power to exclude a usurper at the instance of the State, and to determine the question of usurpation they can go behind the certificate of the returning board.

In view of the express provisions of the intrusion act, and the adjudications of other States to which I have referred, I feel confident that the position I take in this case is correct. Especially as the defendant has not produced a single authority that supports his pretensions. The case of The State v. the Judge of the Second District Court, 13 An. 89, upon which so much reliance is placed, has really no bearing on the case at bar.

There Rousseau sought by mandamus to compel the judge, who was recused, to transfer a certain cause to an adjoining district or refer it to one of the district judges for trial; this court refused the mandamus; because the suit sought to be transferred, did not appear to be authorized by the statute under which it was brought. Therefore, there being no law authorizing the suit, it was no suit; being no suit, no appeal would lie; and no appeal lying', no mandamus could be granted.

I entirely concur in the views expressed in the dissenting opinion of the Chief Justice in that case, because the conclusions upon which the court declined to grant Rousseau relief, were conclusions that could not be legally entertained till there was a trial of the suit, which Rousseau was tr\ing to have transferred to a competent court and tried. The Supreme Court had no original jurisdiction to decide an important issue in Rousseau’s case then ponding in the district court.

But what was the case of Rousseau, which this court refused to order transferred and tried ? It was not a suit brought under the intrusion act. But it was a suit to contest the office of district judge, brought under a statute which only authorized contests for parish offices.

The statute under which he sued did not embrace his case; it was never heard, because this court refused to order it transferred to a competent court for trial. Therefore the remark of Mr. Justice Spofford, that the contesting of votes is not a judicial function, was not necessary to the decision of the mandamus suit; it was a mere obiter dietum. But suppose Rousseau’s case had been before the court and the decision was that the statute under whicli he sued did not embrace his case, would that be authoriiy to defeat the present suit brought under a different statute, the “intrusion act,” the express provisions of which are found to embrace this case? The remedy provided in the intrusion act in no manner depends upon the existence of the statute under which Rousseau sought relief, to wit: the statute allowing electors, in their individual capacity, to contest an election. People v. Holden, 28 Cal. 123.

Courts may go behind the determination of State returning boards and correct them by the returns of the district boards, and in turn may correct them by the ballots themselves, if preserved.” Cooley on Constitutional Limitations, pages 625, 626.

My conclusion is that this suit is authorized by the intrusion act; tlie petition shows a good cause of action ; and the question whether Lynch or Bonner is entitled to the office in dispute is a judicial question, and the cognizance thereof in no manner belongs to the political department.

I believe, therefore, that the exceptions should be overruled and the «ase remanded to the lower court for trial on the merits.

I therefore dissent from the decision of the majority of the Court in this case.

Rehearing refused.


author: Wyly, J.

text:
    No. 2869.
    Herman Job v. Frank Heuer.
    Whore an ex parte statement of account, annexed to the petition, was allowed to be received in evidence, and the books of the partnership, which had been kept by tlie plaintiff himself and offered by the defendant, were excluded: Held — That the court a qua erred.
    'The court below also erred in compelling the defendant, who had pleaded the general issue, to plead payment before permitting him to introduce proof that he had settled in full with the plaintiff. Said plaintiff having alleged a final settlement, it was competent lor the defendant to prove what that settlement was.
    The plaintiff having alleged a final settlement, can not go behind it and demand the investigation and adjustment of the affairs of the partnership. Besides, it could not be done in this suit, which is for a specific sum.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Gustavus Schmidt, for plaintiff and appellee. T. Gilmore <& Sons, for defendant and appellaut.
    Justices concurring : Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Wyly, J.

The plaintiff alleges that on sixteenth September, 1866, he entered into a partnership with the defendant for the purpose of carrying on the wood and lumber business in this city, which partnership continued for three years, terminating on sixteenth September, 1869, when an account of the assets was taken, and a final settlement was effected, from which it appears that the defendant is indebted to him $1353 18. He annexes an account to the petition showing that sum due him. The court gave judgment for $731 32, and the defendant appeals.

We think the court erred in permitting the ex parte statement of account annexed to the petition, to be received in evidence and in excluding the books of the partnership which had been kept by the plaintiff himself. The defendant’s hills of exceptions to this ruling were well taken.

We think the court also erred in compelling the defendant, who had pleaded the general issue, to plead payment before permitting him to introduce proof that he had settled in full with the plaintiff.

The plaintiff alleged a final settlement, and it was certainly competent for the defendant to prove what that settlement was. The bill ■of exceptions on this point was well taken.

Having alleged a final settlement, the plaintiff can not go behind it and demand the investigation and adjustment of the affairs of the partnership. Indeed it could not be done in this suit, which is for a specific sum.

The question is, does the defendant owe the plaintiff the sum claimed. After examining the evidence in the record, we are satisfied that the demand of the plaintiff is utterly without foundation. There was a settlement in full between the partners, and there is no cause for this suit.

It is therefore ordered that the judgment appealed from be annulled, and that there be judgment for the defendant, plaintiff paying costs of both courts.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 2860.
    Bank of New Orleans v. B. L. Millaudon and J. M. Lapeyre.
    Whore tlie evidence shows that the indorser was temporarily absent from New Orleans, at which place he resided, and where his family remained during his absence; that a notice? of protest, intended for the indorsor, was given to one Gasquet, his son in law, at said Gasquot’s office; and that the indorser never received the notice;
    Held — That this is no notice and that the indorser is discharged,
    APPEAL from the Fourth District Court, parish of Orleans. TMard, J.

      A. YoorMes, for plaintiff and appellee. A. Trudeau, for defendant and appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Ludeling, C. J.

This is an action on a promissary note against the maker and the indorser. The maker pleaded the general issue; the indorser alleges want of demand, of protest, and notice of protest. There was judgment against the defendants, in solido, for the amount claimed, and the indorser, Lapeyre, alone has appealed.

The only question, necessary to decide, is whether or not there was legal notice of non-payment given to the indorser.

The evidence shows that the indorser was temporarily absent from New Orleans, where he resided and where his family remained during his absence; that a notice of protest of the note was given to one Gasquet, a son in law of the indorser, at Gasquet’s office; and that the indorser never received the notice. This was no notice to Lapeyre, and he is discharged for the want thereof. Parsons on Bills, vol. 1, p. 556.

It is therefore ordered and adjudged that the judgment of the court a qua against J. M. Lapeyre be reversed, and that there be judgment in his favor rejecting the plaintiff’s demand against him, with costs in both courts.

Rehearing- refused.


text:
    No. 2774.
    Mazureau & Hennen v. W. H. Morgan et als.
    Where the allegations and the prayer of the petition and the evidence adduced make it clear that the action is predicated upon a contract, the plaintiff can not recover on a quantum meruit.

    Hi this case the contract relied on is in flagrant violation of the law, Statute of 1808, thirty-first of March.
    If, in a suit upon a contract, the party fail to prove the contract, but prove without objection the value of services rendered, a judgment might be rendered upon a quantum meruit.

    But when the contract is proved, it is the law between the parties, and the parties must succeed or fail according to the terms of that contract. The court is not at liberty to substitute a/nother, based upon the presumed assont of the parties.
    The plaintiff’s claim is inseparably connected with an unlawful contract, and must fall with it.
    APPEAL from the Seventh District Court, parish of Orleans. Col-lens, J.

      B. B. Forman and C. JIT. Conrad & Son, for plaintiffs and appellants. Bandell Hunt and F¡. Bost, for defendants and appellees.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Ludeling, C. J.

This suit was instituted on the twenty-ñfth of April, 1832. It is based upon a contract, by which the defendants agreed to pay plaintiffs, for professional services, as attorneys and counselors-at-law, one-third of whatever sum might be gained by suit or compromise, of certain claims against the widow and heirs of Price ; but in ease of defeat on the claims, the defendants were not bound to pay them anything.

The statute of 1808 enacted, “that any bargain or agreement with a plaintiff or defendant on the event of any suit to receive any portion of the land or any other property that may be in dispute or sued for, as the compensation for the services of any attorney or eounselor-atlaw, shall be null and void to all intents and purposes.” Bul. & Currey’s Digest, 21.

The contract is in flagrant violation of the law. 2 Mart. 281, Livingston v. Cornell.

But the plaintiffs contend that conceding the contract to be unlawful, they should recover on a quantum meruit.

The answer to this is, that the suit is based on a contract and not on a quantum meruit.

The plaintiffs make the agreement a part of their petition, they aver they acted under it, and they demand the compensation fixed by it. They allege that thereby they became the owners of one-third of the property recovered under it, and they pray to be declared the owners of one-third of the property referred to in the agreement, and for partition thereof. It is true they add the prayer that if this be not granted, then the defendants be condemned in solido to pay the sum of $50,000, which is the value of one-third of said property, and which, their time and labor entitled them to.”

We can not regard the concluding words of this prayer as changing the character of the suit till the allegations and the prayer of the petition make it clear that the action is predicated upon the contract.

If, in a suit upon a contract, the party fail to prove the contract, hut he prove without objection the value of services rendered, a judgment -might be rendered upon a quantum meruit.

But when the contract is proved, it is the law between the parties, and the parties must succeed or fail according to the terms of that contract — the court is not at liberty to substitute another, based upon the ■presumed assent of the parties.

The plaintiff’s claim is inseparably connected with the unlawful contract, and must fall with it. 1 An. 176 •, 11 Wheaton 258.

It is therefore ordered and adjudged that the judgment of the District Court be affirmed with costs of appeal.

Eehearing refused.


text:
    No. 2855.
    African Methodist Episcopal Church v. M. M. Clark.
    "Whore the defendant contended that tlie object of the original incorporators was to unite with the African Methodist Episcopal Cnurch of the United States and be guided in the administration of its affairs by the doctrines and discipline of the general organization; and that, in accordance with said discipline, he was appointed by the Bishop of Louisiana pastor of St. James Chapel, and that he could not be discharged or dismissed from said position by the trustees or incorporators ,*
    Held — That under the charter of the corporation this right is expressly conferred upon the incorporators, and that, in the absence of any provision on the subject, they would have possessod the power, because it is one of the incidents of their owners!lip of the St. James Chapel.
    ■Courts of justice in this State sit to enforce civil obligations only, and never attempt to exercise jurisdiction over those of a spiritual character.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Ootton (& Levy, for plaintiffs and appellee. Lacey, Butler & Belden, for defendant, and appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Ludeling, C. J.

This suit is brought by the trustees and incorporators of the African Methodist Episcopal Church, a duly organized corporation in the State of Louisiana, to prevent M. M. Clark from -officiating or exercising any authority whatever as pastor of the St. James Chapel, and to restrain him from interfering with the government, control and possession of the said church house.

The defendant contends that the object of the original incorporators was to unite with the African Methodist Episcopal Church of the United States, and he guided in the administration of its affairs by the doctrines and discipline of the general organization; and that in .accordance with said discipline he was appointed by the Bishop of 'Louisiana pastor of St. James Chapel, and that he can not be discharged or dismissed from said position by the trustees or incorporators.

The judge of the district court thought otherwise, and we agree with him.

Under the charter of the corporation this right is expressly conferred upon the incorporators. But in the absence of any provision on ■the subject, they would have had the power. It is one of the incidents ■of their ownership of the St. James Chapel.

“Neither the Pope nor any bishop has, within this State, any authority except a spiritual one; and the courts of justice sit to enforce civil obligations only; they never attempt to coerce' those of a spiritual •character. We must content ourselves with considering the defendant in his civil relations to the plaintiffs.” 4 R. 68.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.

Rehearing refused.


author: Morgan, J.

text:
    No. 2941.
    Columbia Fire Company No. 5 v. Joseph A. Purcell et als.
    The penalty for not producing books and papers in obedience to a subpenct chuces tecum% is not imprisonment for contempt. The consequence of the disobedience is, that the party who has obtained the subpena has the right to ask that the facts which he states in his affidavit for the subpena be taken as proved.
    "Whore the books called for were produced on the day of the trial, and the defondant did not then move for a continuance in order to allow him time to examine them, but simply objected to going to trial;
    .Held — That this was not sufficient. He should at least have suggested to the court that he was deprived of some right, or that an examination of the books was necessary to enable him to make out his case.
    Tho facts of this case must be taken as established by the accounts rendered by the defendant Purcell, which clearly show his indebtedness m solido with his security.
    APPEAL from the Fifth District Court, Parish of Orleans. Beaumont, J.
    Trial by jury. Albert YoorMes, for plaintiff and appellee. George B. Bright, for defendant and appellant.
    Justices concurring: Ludeling, Howell, Wyly, Morgan.
   Morgan, J.

This is a suit against Purcell and McCullen, to recover from them, in solido, $1212 75.

Purcell was, during the years 1867, 1868 and part of tho year 1869, treasurer of the Columbia Fire Company No. 5. There is an alleged deficit in his account of $1212 75, for which he as principal, and McCullen, his surety, are sought to be made liable.

As to Purcell there is no defense. Judgment by default was taken against Mm and confirmed. McCullen, however, denies any liability. J3e says he signed the bond on the sixth of February, 1869, and that during the time Purcell continued to be treasurer of the company after his signing it, he discharged his duties faithfully. He says that if Purcell is indebted to the company his indebtedness existed anterior to the date of the bond, and that he is only bound to respond for his acts after his obligation was assumed.

The defendant objects to the rulings of the District Court on two questions, which he contends, prevented him from making a proper defense, and admitted testimony which should have been excluded.

On the twenty-fifth of January he moved the court for a subpena duces tecum upon the plaintiffs to bring into court, on the fourth of February, 1870, the day upon which the case was fixed for trial, the accounts rendez’ed to them by Purcell during the year 1868 and up to April, 1869; the minute book of the company for the years 1868 and 1869 ; the reports of the finance committee during the years 1868 and 1869, and the company’s bank book for 1868 and 1869; and in the same motion he asked that the company be directed to bring the documents into the clerk’s office at ten o’clock A. M., on the day after the service of this order, the books, etc., above referred to, they to remain there until the further order of the court, for examination by the defendant and his counsel. The order not having been complied with, the defendant moved the court that the president and secretary of the company be imprisoned for a contempt, which order the court refused to issue. This ruling of the judge was correct. The penalty for not producing books and papers in obedience to a subpena duces tecum is not imprisonment; the consequences of the disobedience is that the party who has obtained the subpena has the right to ask that the facts which he states in his affidavit for the subpena, may be taken as proved, which was not done here.

When the case was called for trial defendant objected to proceeding therewith, on the ground that plaintiffs had not complied with the order of court commanding them to produce the books. The books were produced on the day of trial. Defendant did not theiz move for a continuance in order to allow him time to examine them, he simply objected to going to trial. This is not sufficient; he should have at least suggested to the court that he was deprived of some right, or that an examination of the books was necessary to enable him to make out his case. The judge was right in ordering the trial to be proceeded with under the state of facts presented by the record.

The opinion to which we have come on the merits renders it unnecessary to pass upon the second bill of exceptions.

The account rendered by Purcell on the first July, 1869, to the plaintiff, shows that he had on hand at that time belonging to the plaintiff $1212 75. This is the sum which it is claimed he owed the company when he ceased to be its treasurer, and for which the surety on his bond is sought to be made liable. On the first of April, by his account rendered on that day and offered in evidence by defendant, he appears to have had on hand $2217 30 to the credit of the relief fund, against a dehit to the general fund of $299 10. By the accounts, then, which ■he furnished in 1869, he always showed a balance on hand in favor of 'the company. Examined as a witness, he says that ou the first January, 1869, lie was indebted to the company in the sum of $1621 70. That on the sixth February, the day on which the bond was signed, he owed the company $1484 50. But this statement is difficult to be reconciled with what he states in continuance of his evidence, when, in answer to the question “ during 1868 did you at all times have the moneys of the company on hand?” propounded to him by defendant’s counsel, he says: “ I can not exactly swear to that, but I had, I expect, very near it.” “In cash 9” asks the counsel. “ Yes, sir,” is the reply. We think we must take the facts as they are established by his accounts, which clearly show the amounts on hand when they were rendered and his indebtedness, for which his surety is responsible.

The judgment of the court was in favor of the plaintiff, and we do not see any error in the verdict of the j ury upon which it was rendered.

The judgment is affirmed with costs.

Rehearing refused.


text:
    No. 4518.
    State ex rel. Recorder of Mortgages v. Charles Clinton, Auditor.
    •Where tlie plaintiff prayed for a mandamus to compel the Auditor to issue to Mm warrants on the State treasury for compensation for mortgages recorded by him under the section 67 of act 42 of 1871, at tbe rate of $1 50 per each mortgage, in accordance with the roll wMch he had furnished to the Auditor, and which is in the Auditor’s possession;
    Held — That there is notMng in the record showing that the amount claimed exceeds-five hundred dollars and vests jurisdiction in this court. It may be above or below that sum. The jurisdiction of the court must be apparent from the pleadings. It can not be guessed at.
    The Recorder of Mortgages is not mentioned in section 52 of aot 42 of 1871, and this court can not supply the omission, if it be an omission.
    If the relator has registered mortgages in favor of the State and the State has nob paid him therefor, and his compensation is not otherwise provided for by law, and his legal demands have not boon complied with, he may have his recourse against the State, but his remedy is not by mandamus against the Auditor.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Horner and Benedict, for relator and appellant. A. P. Field, Attorney General for respondent and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Morgan, J.

Section 67 of the acts of 1871 (act No. 42) provides that, in New Orleans, a list of delinquent taxpayers shall be recorded and sent to the Auditor of Public Accounts, on or before the second* Monday of December of each year, with a proper certificate thereto-affixed.

The relator prays that the auditor be compelled to issue to him warrants on the State Treasury in his favor for compensation for mortgages recorded by him under the law quoted, at the rate of one dollar and fifty cents for each mortgage, in accordance with the roll which he has furnished to the auditor, and which is in his (the auditor’s)' possession.

He claims payment for these services under the fifty-second section of the act referred to, which provides that:

The assessors and tax collectors in the city of New Orleans, and the tax collectors of the other parishes of the State, and all others-herein named in connection with the assessment and collection of taxes, shall be paid by the State Treasurer, on the warrant of the Auditor of Public Accounts, out of any moneys in the treasury not otherwise appropriated.”

There are good reasons why this application should be refused.

First — We are entirely in the dark as to the amount which is sought to be taken from the treasury in this claim, and we, therefore, are not informed as to whether we have jurisdiction in thematter. We have no' appellate jurisdiction except in cases where the amount claimed, or in dispute, exceeds five hundred dollars, and we do not think that the-mere demand that the auditor be ordered to issue his warrants on the State Treasurer in favor of the relator for compensation at the rate of one dollar and fifty cents each for the mortgages recorded as aforesaid, as appears by the roll in possession of said auditor, or show canseto the contrary on a day to be fixed by the court,” is any basis for our-assuming, even if we were permitted to do so, that the amount claimed exceeded five hundred dollars, when the roll upon which the claim is-based is not in the record, particularly when we find in the record an acknowledgment of the recorder in the shape of a receipt for $1537 60,. paid by the auditor for “ certified copies of delinquent tax lists for 1871 of the First, Second, Third, Fourth, Fifth and Sixth Districts of the city of New Orleans, containing 768,796 words, as per certificates-hereunto attached, and at twenty cents per hundred words.” We may be passing upon a claim involving many thousands of dollars, but the matter in dispute may not after all be over five hundred dollars. Our jurisdiction must be apparent from the pleadings; we can not guess at it.

Second — The fifty-second section of the act upon which the relator relies, refers alone to the payment of assessors and tax collectors; the-Recorder ot Mortgages is not mentioned therein, and we can not supply the omission, if it be an omission.

Third — The Register of Conveyances and Recorder of Mortgages of the city of New Orleans are, by the 3172d section of the Revised Statutes, entitled to $1 50 for each registry of mortgage. If the relator-has registered mortgages in favor of the State, and the State has not paid him therefor, and his compensation is not otherwise provided for-by law, and his legal demands have not been complied with, he may-have his recourse against the State ; but Lis remedy is not by mandamus against the auditor.

For these reasons the judgment of the lower court is affirmed, with, costs.

Rehearing refused.