State v. Judge of Second Judicial District Court

Spoffokd, J. James Foulhoune is commissioned as Judge of the Second [90] Judicial District Court. That he is the acting Judge is admitted by the prayer of the petitioner for a mandamus, compelling him to grant a judicial order. The relator, O. S. Rousseau, has filed a petition in the Second Judicial District Court for the parish of Plaquemines, contesting the election of James Foulhouze to the office of Judge of that district, and claiming to have been elected himself. In form, the proceedings appear to have been instituted under the 42d, 43d, 44th and 45th sections of the law relative to contested elections. Revised Statutes, 217. It appears, that the relator has recused the presiding Judge, who is the defandant in this contest. After recusing him, the relator, through his counsel, moved the presiding Judge to grant an order removing said cause to an adjoining district, or referring it to one of the District Judges of the State, for trial. The presiding Judge refused the motion, and the object of the present proceeding is to have a peremptory mandamus, compelling him to grant it. In his answer to the rule nisi, we think the presiding Judge has shown, that the District Courts of this State have no power granted them by law to entertain controversies of this character. Out of the parish of Orleans there is no law providing for a judicial scrutiny into the votes for any other than “parish officers.” A Judge of a district embracing two parishes is not a parish officer, within the meaning of the Act relative to contested elections. The whole texture of the Act is inconsistent with the opposite hypothesis. The remedy invoked by the relator is purely statutable. If the statute under which he attempts to proceed does not embrace his case, he is without a standing in court. The contesting of votes is not a judicial function, only so far as made such by special statutes. Indeed, some may have gone so far as to question whether this is not wholly a matter of administration which cannot with propriety be referred to the judicial tribunals at all. At any rate it is clear, that such tribunals cannot 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, raUone mateo'ice. The consent of parties cannot give jurisdiction, and all courts before whom such an unauthorized controversy is brought must decline, ex officio, to render any order which would recognize a right to sustain the case. It matters not, therefore, that no exception has been filed to the .suit of Rousseau ; there being no express law authorizing him to contest the election of his successor before any of the District Courts, he asks us to do a worse than futile thing when he asks an order compelling such a case to be tried. It has been said on a former occassion, that “courts of justice will not lend their aid to foster idle, circuitous and wasteful litigation.” Hyde & Goodrich v. New Orleans, 12 An., 191. In our opinion, we ought not to compel the tribunals whose proceedings we revise to grant orders with a direct view to the continuance of costly proceedings, when their lack of jurisdiction ratione materim is patent upon the record. Because, in the case of the State v. Judge of the Fifth District Court of New Orleans, 12 An. 514, we declined to interfere by a writ of prohibition in this case, before any action to the prejudice of the applicant was had, it does not follow that we should interfere now, by a writ of mandamus, to compel the prosecution of a suit which no court can lawfully entertain. The District Judge being called on to grant certain orders has answered, [91] that the granting of those orders would involve pro tanto, the entertaining of jurisdiction in a cause upon which no judgment could be pronounced ; the applicant has contended that it would not, and the point at issue below was, whether any law authorized the courts of justice to take cognizance of a contest touching the election of a District Judge, out of the parish of Orleans. The same point has been mooted here, and being of opinion with the District Judge, that no such law exists, we think the rule must be discharged. Rule discharged. Buchanan, J. It is settled by repeated decisons, that this court will only issue the writ of mandamus in aid of its appellate jurisdiction. But that appellate jurisdiction of necessity requires an original jurisdiction in the court of the first instance, as its basis. The want of jurisdiction in that court is the foundation of a different suit, that of prohibition. Whenever, therefore, it is brought to our notice, that the matter in which we are called upon to enforce the action of an inferior court by the writ of mandamus, is one which is not within the cognizance of the tribunal whose action is sought to be enforced, we are bound to refuse the writ. It appears to me that we have here a case of this sort. The contest of an election of a District Judge, out of New Orleans, appears to be, thus far, a causus omissus in our legislation. If such an action could be entertained at all, most clearly the Judge whose election was contested would be incompetent to sit in judgment upon that issue. His duty would be to refer the matter to another Judge, to be proceeded in according to the general rules for the trial of recused cases. But there being no action given by law to contest such an election, the recusation of the Judge can produce no effect. For if that particular Judge is incompetent ratione persona, all other Judges are, as well .as himself, incompetent ratione materia. And we can give no relief, because the matter is not the subject of judicial action. It must be admitted, that the position of the case of Octave S. Rousseau v. James Foulhouze is an anomalous one; and it is said, that being in court, it must be disposed of; that it is impossible that any cause can be in court without being under tho control of the court, so far at least as to dismiss it, if it cannot be entertained. On the other hand, I should say, that the Olerk of the District Court might have declined to file among his records an action unwarranted by any law. As a matter of private opinion, I should say the District Judge might direct the Clerk to return the petition to the party who filed it. But, as a member of this tribunal, I cannot interfere. For these reasons, I concur in the dismissal of the rule for a mandamus.