No. 2466 | La. | Jan 15, 1870
This suit is brought under the “ Intrusion Act,” against John L. Lewis, claiming the right to exercise the duties of the office of District Judge of the Eleventh Judicial District of the State.
Tho case was tried before the Parish Judge of the parish of Claiborne, acting in place of the District Judge, recused. There was judgment against the defendant, divesting him of the office he claims, and he prosecutes this appeal.
■ We will first examine the motion to dismiss the appeal. The ground taken is, that the appeal was not brought up within ten clays from the time of the rendition of the judgment, as required by law. The appellant is clearly not in faiüt. The law does not require vain or impossible things to be done. The order of the judge a quo fixing the
Several exceptions were filed by the defendant, which it becomes necessary to examine..
First — That N. J. Scott, before .whom the case was tried, is not Parish Judge.
Second — That Parish Judges have no warrant of law to try causes in chambers.
'Third — That this case, having been instituted against the defendant when he was acting as judge under his first commission, it can not be maintained now, as he exercises the duties of his office under and by virtue of a commission subsequently conferred upon him.
Fourth — That N. J. Scott was never required, as Parish Judge, to try the present case, and that he was never recognized by the District Judge as.being Parish Judge.
It appears that N. J. Scott performs the duties of the office of Parish Judge of the parish of Claiborne. His capacity’ and right to perform these duties can not. be inquired into collaterally. Whatever functions or powers District-Judges are invested with under the Intrusion Act, Parish Judges may exercise pro hoc vice when acting in. place of the District Judge recused. If ineligible under the first commission, the defendant is equally so under the second, unless subsequent to the date of the last commission the ineligibility, if any, has been removed. The order of the defendant recusing himself directs the Parish Judge to try the case, but names H. A. Drew as that official, and adds : “ He refuses to do so.” The order is directed to the “ Parish Judge,” and the person acting under that order in the capacity of Parish Judge will be presumed to be the proper officer. We think the exceptions were properly overruled.
The ruling of the court was also correct in rejecting the written opinion of the defendant rendered on declining to recognize N. J. Scott as judge, at the time of making- the order of recusation.
The petition charges that the defendant unlawfully holds the office of District Judge of the Eleventh Judicial District, and makes the following allegations: .
That anterior to the late rebellion, the defendant held, in the State of Georgia, and under the constitution and laws, the several offices o* State Solicitor, District Attorney and member of the State Legislature) and, in order to hold those offices, took an oath to support the constitution of the United States, and afterwards voluntarily engaged in rebellion against the United States, in aid of the so-called Confederate States; that the disabilities thereby incurved by virtue of the third
To establish the first allegation, the plaintiff introduced the law of Georgia, approved twenty-eighth of January, 1822, making it obligatory upon all officers, civil and military, in the State, to take an oath to support the constitution of the State and of the United States. The testimony of a witness who had served in the Georgia Legislature as a member of that body, at the same time that the defendant was also a member, proves the same fact of the requirement to take an oath to support the constitution. He testifies to having taken the oath himself, as a member of the Legislature of Georgia. It is fully established that, during the rebellion, the defendant went into its support in command of a company of soldiers. The facts shown abundantly justify the strong presumption that, as a member of the Georgia Legislature, prior to the rebellion, the defendant took an oath to support the constitution, of the United States. Nothing is offered to rebut this presumption, and no reasonable doubt of the fact remains. Our view of this case renders it unnecessary to examine the evidence offered to sustain the other allegations, and we are satisfied that the judgment of the court a qua is correct.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs in both courts.