
    John R. Borgstede v. Daniel Clarke.
    Iii the clause in the sixth section of the act of June 1st, 1846, prescribing the time when a new election shall be held, the phrase term of the court in the parish of Jefferson, means the monthly terms of the court.
    It is not necessary to traverse the return to a mandamus before going to trial on the merits. After the governor has issued a commission to an officer whose election was contested, upon the party contesting having discontinued his suit, it is too late for him to renew the contest or dispute the right of the officer holding the commission. »
    APPEAL from the District Court of Jefferson, Clarke, J.
    
      C. Roselius for plaintiff,
    contended: This is an application for a writ of mandamus by the present recorder of the parish of Jefferson, to compel the defendant, who was h’is predecessor in that office, to deliver the public records of the office, as well as the place where the office is directed by law .to be held. The application is made under the 833d article of the Code of Practice. To a rule nisi taken on the defendant he answered, that the election for parish recorder had been held on an improper day, &c. He had previously contested the election of the plaintiff, but had discontinued his contestation. The plaintiff produced his commission, his oath of office, and the bond and security which he had furnished for the faithful discharge of his duties as parish recorder. Upon this evidence the district court ordered a peremptory mandamus to issue ; and the defendant has brought the case before this court by appeal.
    It is respectfully submitted, that there is not the slightest pretext for a defence to the application. By the provisions of the law of 1846, the election to offices of this kind can only be contested within a limited period, and in the manner prescribed. After the governor has commissioned the officer, no question can be raised concerning the regularity or legality of the election. The commission is a complete bar to any such inquiry.
    
      R. M. Carter, for defendant,
    contended: The defendant is appellant from a judgment of the Third Judicial District Court, directing a peremptory mandamus to issue, commanding him to deliver up to the plaintiff the office of recorder of the parish of Jefferson. Before entering into the defence which the defendant relies upon, in asking the court to reverse the decree of the lower court, it is necessary to state some facts which are not contested by either party.
    
      Mr. Clarke, the defendant, was elected in-, as recorder of the parish; pursuant to law his term of office expired on 5th November, 1849, or until a successor should be legally chosen. An election took-place on 5th November, 1849, and Mr. Borgstede was returned as recorder. This return was contested by Mr. Clarke, under the law concerning “ contested elections,” passed June 1, 1846. The election was declared null and void. The sheriff of the parish ordered an election, under section 6th of that law, which reads as follows : “If the finding of a jury be in favor of a new election, the sheriff or coroner, as c¡ase may ^e> sLall advertise the same at the door of the house at which election for each precinct of the parish is to be held, to be held on the fourth Monday after the last day of the term of court at which the trial has been had, and after at least fifteen days notice by advertisement aforesaid.” The sheriff construed the term of court to mean a monthly term, and directed an ejection to be holden on 28th January, 1850. Against this construction the incumbent and his friends entered a protest. The election took place, and Mr. Borgstede received a majority of votes, and applied for the office and was refused. Mr. Clarke immediately instituted suit against Mr. Borgstede. An issue was joined, and a jury summoned under the provisions of the act of 1846. At this stage of the case, the counsel who now addresses you was employed by the defendant. When the case was called for trial, I advised my client to discontinue his suit, which was done. Mr. Borgstode, on the 20th of February last applied to the judge for a mandamus. A rule to show cause issued, made returnable on the 25th. The proceedings had on that rule are the matters for review on this appeal.
    The writ of mandamus is derived from the common law, and its appropriate application can only be determined by reference to the decisions of courts of common law or positive statute enactments. It is not necessary to dwell upon the antiquity of this writ, but to proceed at once to the first question raised by the return of tho defendant. Can this writ issue in this case ? “ It was introduced,” say the writers. “ to prevent disorder from a failure of justice, and defect of police.” This explanation is sufficiently broad and comprehensive to subserve all good and practical purposes. It is a summary proceeding; a deviation from the usual legal proceedings; it removes all impediments to a speedy decision of the matter in controversy. Let us enquire what reason exists for the issuing of the writ in this case ? Mr. Borgstede claims an office, or rather the emoluments of that office. Admit his claim, and then ask what concern has the State or the parish in the enquiry to whom those fees should go, whether to Borgstede or Clarke? It is not contended that the records appertaining to the office of recorder are not safe; it is not shown that the public interests are endangered by the continuance of Mr. Clarke in office. All the interest presented is of a private nature. “ When the right is of a private nature, as in the case of an office in which the public are not concerned, such as that of deputy register, it is discretionary in the court to grant or refuse it.” We think that nothing in the record shows a necessity for the exercise of the discretion of the court to issue the writ. It is not the purpose of the party to dwell upon this point, but to proceed to the examination of the second question.
    Was a sufficient return made to the rule to show cause why the writ of mandamus should issue ? It is presumed that the plaintiff, in seeking his Remedy, relied upon articles 830, 831, 832 and 833. The action of the court was based upon article 840 ; the rule upon the defendant, on article 841. On the 25th of February a return or answer was filed to the rule. Article 842, C. P., reads thus : “ If, on the day assigned for answering the order, the party, or judge to whom it is directed, answers and states sufficient reasons to justify his conduct, the complaint shall be dismissed, and the petitioner shall pay costs.”
    Did the defendant, on his answer, state sufficient reasons for his conduct ? He alleges, that the election was illegally held: 1st. It was not held at the time required by -law. 2d. It was not held at the places required by law. 3d. That the notices required by law for holding said election were not given. Are these sufficient reasons ?
    The defendant further adds, he cannot give up his office to any person unless legally elected and qualified, under loss to himself, his sureties on his official bond and to the public These sufficient reasons were sworn to. We contend that the return was sufficient, and the duty of the judge was to refuse a peremptory mandamus. The return has not been contradicted; no evidence was introduced to show that the allegations were false. On one side, Mr. Borgstede asserted his election; on the other, Mr. Clarke denied it. Either of the reasons alleged by Mr. Clark was a sufficient reason and a good return to the rule : “ But if he at first returns a sufficient cause, although it should be falso in fact, the Court of Kiüg’s Bench will not try the truth of the fact upon affidavit, but will for the present believe him, and proceed no further on the mandamus. But then the paity injured may have an action against him for his false return; and (if found to be false by the jury,) shall recover damages equivalent to the injury sustained, together with a peremptory mandamus to the defendant to do his duty.” Jacob’s L. D., verbo Mandamus. “The party to the return of a mandamus could not traverse nor interplead.” Bacon’s Ab. verbo Mandamus. This was the law in England for centuries governing returns, until changed by statute.
    The next question presenting itself to the court is this : What was the duty of the plaintiff when the return was made ? If the English mode of procedure be considered binding upon the parties to this suit, the plaintiff should have traversed the return. This was not done. No issue was presented by the plaintiff; he traversed no fact in the return. It may be said he presented a commission from the governor; and it may be urged, that this document traversed successfully the allegations of the defendant. A commission under the seal of the State is not conclusive of the title to an office subject to popular election. The governor merely peiforms a ministerial function. At the present moment there are two commissions held by different persons for the office of United States Judge for the Eastern District of Louisiana; yet it will not be pretended that the gentleman who holds the commission youngest in date is entitled to the judgeship. Commissions similar to that tendered by the plaintiff necessarily issue on exp arte statements. The return to the mandamus avers, in substance, that the commission was null and void. We say, then, that the rule should have been discharged, and no further proceedings had by the judge, unless the plaintiff traversed the return, and gave the defendant opportunity to plead thereto. By statute of 9 Anne, c. 20, the right to traverse the return was granted in the same way as if the party had brought his action on the case for a false return. Verbo Mandamus, 6 Bacon’s Ab.
    Was the election held at the time required by law ? The election of Borgstede was decided by the jury on the 10th December, 1849, to be null and void. The sheriff ordered the election to be held on the 28th January, 1850. Was this day “the 4th Monday after the last term of the court at which the trial has been held?” The first section of the act of 1846 requires the proceedings to be had before the district court for the parish in which the election may be had. Let us, therefore, enquire which is the last day of the term of court of the Third Judicial District Court ? An act was approved 27th May, 1846, entitled “ An act to fix the time at which the terms of court in the several parishes of the State shall be holden (the parish of Orleans excepted.)” By that act it is declared. “ Third district: In the parish of Jefferson, from the first Monday in November till the fourth day in July.” The last day of the term of court is the 3d of July. But, it is contended, that by an act approved June 1, 1846, sec. 3d, the terms of court are monthly; and reliance is placed upon the following clause to be found in the section : “ Shall draw from said jury box forty names of persons duly qualified to act as jurors for the ensuing term, consisting of the calendar month.
    What is the obvious meaning of this clause, that the jury term should be monthly 1 And if there was room for a doubt the last few words of this section removes it, “ and to serve during the balance of the term of one month.” But the new election is to be held on the “ 4th Monday after the last term of court.” But can any effect be given to the clause in the section last quoted ? Article 118 of the Constitution says, “ Every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title.” The act from which we cited is entitled, “ An act relative to the mode of composing and drawing juries for the Third Judicial District, parish of Jefferson.” The object as expressed in the title is for the composing and drawing of juries ; the section referred to creates jury terms; or, if it be conceded that it creates terms of courts, the section is clearly unconstitutional. The composing and drawing juries, and the holding of terms of court, or jury terms, are different and distinct objects.
    We conclude; 1st. A sufficient return was made to the rule to show cause why a mandamus should issue. 2d. That it is clear that the election was not held at the time designated by law. 3d. That until a recorder for the parish be elected according to law, and duly qualified, Mr. Clarke cannot be called upon to deliver up the office.
   The judgment of the court (Preston, J., recusing himself, having been of counsel in the case), was pronounced by

Slidell, J.

The defendant is appellant from a judgment directing a peremptory mandamus to issue, commanding him to surrender to the plaintiff the office of recorder of the parish of Jefferson, the official books, &c.

The material facts are as follows: Clarke was formerly recorder. At an election in November, 1849, Borgstede was returned as elected ; Clarke contested the election under the act of June 1, 1846, and it was declared null. Under the 6th section of that law the sheriff ordered an election to take place on the 28th January, 1850. At this election Borgstede again received a majority, and Clarke again instituted proceedings contesting the election ; but after issue joined they were discontinued on his own motion.

In his petition in this cause the plaintiff alleges his lawful commission from the governor, which he annexes to his petition, and proper qualification by taking the oath of office and giving bond. The^proceeding was in the nature of a call upon the defendant to show cause why a peremptory mandamus should not issue. The defendant in his answer alleged that the election was illegally held ; that it was not held at the time, nor at the places required by law, nor upon due notice.

By a bill of exceptions it appears, that “after the counsel for defendant had read the returns to the rule taken by the plaintiff, in which said return it is alleged, that the alleged election of plaintiff was illegal as to holding in time, place, and notice, said defendant moved the said rule be dismissed, unless traversed by the plaintiff by his filing an answer. The court decided that it was not necessary to traverse upon part of plaintiff. To which decision defendant excepted.

The argument of the defendant’s counsel before this court travels out of the bill of exceptions and discusses the question, whether, under article 842, the return or answer being, as he contends, sufficient, he had a right to have the complaint dismissed, and drive the plaintiff to an action for a false return, pursuant to the ancient practice at common law before the statute of Anne. This question is not covered by the bill; it is not, however, improper to observe, that if it were, a majority of the court is of opinion, that the plaintiff, under our practice, cannot be driven to the circuitous remedy of an action for false return. The question really presented by the bill is, whether the plaintiff' is bound to traverse the answer before the cause can be tided. We concur with the district judge that this was unnecessary. It is the familiar rule of our practice that a replication is unnecessary, and that the plaintiff is to be considered as denying any new matter set up by the defendant. This rule, applicable to ordinary cases, and which was intended to expedite the progress of the cause, is a fortiori proper in summary proceedings, which, in the language of the code, are carried on “ without going through the ordinary forms of actions.”

It further appears by the bill of exceptions, that after the point just noticed was ruled against him, the defendant asked a continuance, on the ground that his client was not prepared with the necessary proof in support of his allegations in the returns, which continuance the court refused. We think there was no error in this. The application was not supported by affidavit showing the necessity of a continuance.

This brings us to the consideration of the cause on the merits.

The argument for the defendant was mainly rested upon the alleged irregularity of the plaintiff’s election as to the time of holding it. The sheriff, after the former election was annulled, advertised on the 26th December an election to be holden on the 28th January ensuing. By the 6th section of the act of 1846, p. 117, the sheriff is directed in such a case to advertise an election to take place on the fourth IMonday after the last day of the term of court at which the trial has been had. And the question is, what is the term of the District Court in the parish of J efferson to which we are to apply this provision of the statute ? Is it the entire session, “from the first Monday in November till the fourth day in July,” which is spoken in the act of 27th May, 1846, p. 56? or is the lawgiver to be considered as having contemplated in reference to the parish of Jefferson monthly terms? We think the latter the correct interpretation ; for in an act relative to the parish of Jefferson, passed at the same session of the Legislature, we find monthly terms expressly and l-epeatedly mentioned. Act of 1846, p. 111. This act bears date on the same day as the act respecting contested elections; (Ib. p. 116,) and as to time of preparation the former seems to have preceded the last mentioned act. It is proper also to observe, that the construction invoked by the defendant would lead to results which, we may believe, the Legislature would never deliberately have sanctioned. November is the month for holding elections; and if, for the purpose of the present question, the term of the District Court in Jefferson is considered as commencing in November and ending in July, then the public voice would be silenced, and the old incumbent would hold his seat until the ensuing July or August — a period of nine months. Moreover, the election would be thrown into a season of the year at which, in the usual course of things, the voting population of the parish is much reduced.

But on another point the case is clearly with the plaintiff. He contested the election under which the plaintiff claims, but abandoned the contest; and after that abandonment the governor issued a commission to the plaintiff. By the 13th section of the act of 1846, p. 13 8, it is enacted, thatthe governor shall not issue a commission until forly days after the day of the election for the parishes within one hundred and fifty miles of the seat of government. On the successful candidate furnishing to the governor a copy of the judgment of the court in his favor, duly certified by the clerk, dated after the last day of the term, the governor is required to issue immediately a commission to such successful party. And upon the certificate of the clerk, showing either that the contest has been abandoned, or the right to prosecute it lost by non-compliance with the provision of the act, the governor is directed to issue his commission in favor of the person in whose favor the certificate of election has been granted. Now it would be clearly a violation of the policy and spirit of this act, which was intended to put such questions at rest as promptly as possible, to permit the defendant still to frustrate, or to question the popular will, after he has once contested, has abandoned that contest, and the executive subsequent to that abandonment has issued a commission.

The judgment of the district court is therefore affirmed, with costs.  