Record and brief — Joseph A. Walker, Plaintiff in Error, vs. Charles S. Sauvinet
Supreme Court brief1874
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TRANSCRIPT OF RECORD.
oe PE UPA A a 2
JOSEPH A. WALKER, PLAINTIFF IN ERROR,
if VS.
A CHARLES 8S, SAUVINET.
IN ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.
FILED DECEMBER 7, 1872.
SUPREME COURT OF THE UNITED STATES.
No. 350.
JOSEPH A. WALKER, PLAINTIFF IN ERROR,
VS.
CHARLES 8. SAUVINET.
IN ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.
INDEX.
PROCEEDINGS HAD IN THE EIGHTH DISTRICT COURT FOR THE PARISH OF ORLEANS,
6
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Citation to Landfried ...... 2... 2... --ccnce eons concen snmewe eandvdcsdwie
Sheriff's return ,
Citation to Walker
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Answer of Walker
‘Motion for subpoena
Writ of subpoena
Sheriff's return
Challenge to jury, No. 1
Exception and. challenge to jury, No. 2.2.20. -.20 cesses sonnce sence © cose cose
Testimony of F. M. Segur..... Shih chinlndmeninnn abet dikinbehNird eeow °
Testimony of Sauvinet..... indians iiiielisanaieehasiaibe ti ities ieeieintnebiit
Exception sustained |
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3
3
4
4
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5
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6
6
6
9
9
9
10
10
Motion for subpoena
Subpceena duces tecum
Sheriff's return ...... 2... .-cee.-e din atinminbintieenKEnaee eben cheers
Testimony of McConnell, juror
Testimony of Sayvinet, plaintiff...... .....- catia cane ccuwes cose ene ocqeecaes
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Continuance (minutes)
Testimony of Sauvinet (recalled)
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Decree (rehearing refused) .... -. 222 coce co cccs cece oe coc wwe woes cee co cece
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JOSEPH A. WALKER VS. CHARLES S. SAUVINET.
1 3513. Supreme court of La. Filed Nov. 6th, 1871.
(Signed) M. P. JULIAN,
Deputy Clerk.
State of Louisiana, eighth district court for the parish of Orleans.
C. S. SAUVINET
Us. No. 399.
J. As WALKER ET AL.
E. Filleul for plaintiff; Jos. B. Horner and A. A. Attocha for defend-
ant.
-
Transcript of appeal returnable to the supreme court of the State of
Louisiana, on the first Monday of November, 1871.
2 State of Louisiana, eighth district court for the parish of Orleans
©. S. SAUVINET
US No. 399.
a. A, WALKER.
Petition. —Filed Jan. 26, 1871.
To the honorable judge of the eighth district court.
To the honorable judge of the eighth district court for the parish of
Orleans:
The petition of C. 8S. Sauvinet, of the city of New Orleans, respect-
fully shews:
That, on the 20th day of January, 1871, your petitioner called at the
cofiee- house known as the “ Bank, ” No. 6 Royal st.. a place of public
resort, owned by J. A. Walker and Frank Landfried, who are licensed
under the laws of this State to keep the same, and of the ser-
3 vants and agents of the said establishment, requested to be
served and supplied with refreshments that were kept and sold
in said coffee-house by said J. A. Walker and Frank Landfried.
Your petitioner avers that he offered to pay the usual and customary
price for the refreshments so called for by him. That he was orderly
and respectful in his conduct, manner, and behavior while in said es-
tablishment.
That J. A. Walker, Frank Landfried, their agents and servants, then
and there, wrongfully and intentionally refused to furnish your peti-
tioner the refreshments so called for, and demanded, because your peti-
tioner was a colored person, and ordered him to leave the establishment.
Your petitioner further avers that, under the constitution and
4 laws of this State, he had the right with others, of whatever class
or color, of access to said establishment and to be supplied with
such refreshments as said J. A. Walker and Frank Landfried had there
tor sale, and were then being sold by them to others.
And your petitioner further avers that the only ground upou which
the said agents and servants of the said J. A. Walker and Frank Land-
fried refused to furnish your. petitioner with the refreshments he called
_ for, was that he was a colored man and not to be accom’odated in said
REc. 350—1
2 _ JOSEPH A. WALKER VS. CHARLES 8. SAUVINET.
establishment. That your petitioner has always enjoyed the esteem and
friendship of his fellow-citizens, that he has been several times chosen
to fill public offices of great trust, profit, and honor; that at thelast general
7 election he has been elected the civil sheriff of the parish of Or-
Dd leans, that he has been commissioned by the governor of the
State of Louisiana, and is now exercising the duties of the said
office.
That by reason of the acts complained of, he was greatly outraged in >
his feelings, and has sustained damages to the amount of ten thousand
dollars. |
Wherefore your petitioner prays that said J. A. Walker and Frank
Landfried be cited to appear and answer this petition, and after due
proceedings that they be condemned severally and in solido to pay to
your petitioner the said sum of ten thousand dollars, with costs; and
he further prays that judgment be rendered against said J. A. Walker
and Frank Landfried, declaring their license from the State and city to
keep the said establishment to be forfeited, and the said establishment
to be closed. And your petitioner prays for general relief, and asin duty
bound.
6 K. FILLEUL, Counsel.
Citation.—Issued 26 January, 1871.
C. S. SAUVINET
US. No. 399.
J. A. WALKER & ALS. :
Mr. FRANK LANDFRIED, N. O., La.:
You are hereby summoned to comply with the demand contained in
the petition of which a copy accompanies this citation, or deliver your
answer to the same, in the office of the clerk of the eighth district court _.
for the parish of Orleans, in ten days after the service hereof.
Witness the honorable Henry C. Dibble, judge of the said court, the
twenty-sixth day of January, in the year of our Lord eighteen hundred
and seventy-one.
| SEAL. | (Signed) : ROBERT LYNNE,
| Dy Clerk.
7 Sheriffs return on foregoing.—Filed January 27th, 1871.
Received, New Orleans, January 26, 1871, and on the same day served
a copy with petition, personally on Frank Landfried, at his place of busi-
ness, No. 8 Carondelet st., at 4 o’clock and 40 minutes p. m.
(Signed) P. CREAGH,
Coroner 1st, 4th, 5th, and 6th Districts.
Citation.—Issued 26 Jan’y, 1871.
State of Louisiana, eighth district court.
C. S. SAUVINET
U8. No. 399.
J. A. WALKER AND ALS.
Mr. J. A. WALKER, N. O. La.:
You are hereby summoned to comply with the demand contained in
aw a atin mm ite marae see Mate ROSIE RL) A RE oe
A OR EE Le RS Pwr ARS Pees ewe
2 PONS Rew re
JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. | 3
the petition of which a copy accompanies this citation, or deliver your
answer to the same in the office of the clerk of the eighth district
8 — for the parish of Orleans, in ten days after the service
ereof.
Witness the honorable ‘Henry C. Dibble, judge of the said court, the
twenty-sixth day of January, in the year of our Lord eighteen hundred
and seventy-one.
(Signed) 3 ,OBERT LYNNE,
3 Dy Clerk.
Sheriff’s return on foregoing.—-Filed January 27th, 1871.
Received, New Orleans, January 26th, 1871, and on the same day
served a copy, with petition, at the place of business of J. A. Walker,
No. 6 Royal st., at-4 o’clock and 30 minutes p. m.
(Signed) P. CREAGH,
Coroner 1st, 4th, Sth, & 6th Dist’s.
Kighth district court for the parish of Orleans.
©. S. SAUVINET ?
vs. | No. 399.
J. A. WALKER & a5
9 Answer.—Filed 3d Feb’y, 1871.
‘Now comes into court, by his undersigned counsel, Frank Landfried,
made defendant in the above-entitled and numbered cause, and, after
expressly reserving to himself all exceptions and other legal means of
defence, for answer to plaintiff’s petition and demand herein, says:
That he denies all and singular the facts and allegations of said
plaintiff’s petition and demand herein.
Respondent, for further answer herein, says that he denies having any
connection with or interest in the coffee-house and establishment known
as the “ Bank,” situated at No. six Royal street; that he was formerly in
partnership with Joseph Alphonse Walker and a part-owner of said es-
tablishment; but that, on the eleventh of February, 1870, said partner-
ship was dissolved, and he then sold all and singular his right,
10 and title, and interest in and to the said establishment unto said
Joseph Alphonse Walker, and from that moment ceased to have
any interest in or connection with said establishment.
That plaintiff herein has therefore no right of acting whatsoever
against him.
Wherefore he prays that plaintiff’s demand be hence dismissed at
said plaintiff’s cost, and for judgment in his (respondent’s) favor, with
costs, and her further prays for all general and equitable relief in the
premises.
A. L. TISSOT,
Of Counsel.
This answer of Frank Landfried filed February 3rd, 1871.
(Signed) ROBERT LYNNE,
Dy Clerk.
Te ee ee ee a eRe RR Te yar ere
12 iv oo oy * 3
JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET.
Answer.— Filed 4th Feb’y, 1871.
Highth district court.
C. S. SAUVINET
U8. No. 399.
J. A. WALKER AND ALS.
Answer of J. A. Walker,
Now into this honorable court, by his undersigned attorneys,
11 comes Joseph A. Walker, made defendant herein, and, for answer
to plaintiff’s petition, pleads a general denial of all the allega-
tions therein contained, and specially denies that he is in any manner
indebted to said plaintiff.
Wherefore respondent prays for judgment in his favor, with costs, for-
a trial by jury, and for all general relief.
A. A. ATTOCHA &
HORNOR & BENEDICT,
Att’ys.
Filed February 4th, 1871.
| J. D. TAYLOR.
Dy Clerk.
Motion for subpana duces tecum.
Eighth district court.
C. S. SAUVINET )
U8. | = o. 399.
J. A. WALKER.
On motion of E. Filleul, of counsel for plaintiff, it is ordered that sub-
peena duces tecum issue to J. A. Walker commanding him to bring into
court, on Wednesday, the 1st of March, 1871, the State license
12 and city license, which he is bound by law to take, in order to
keep his cofiee-house establishment, to be ‘used in evidence on
the trial of this case.
(Extract from minutes 27th Feb’y, 1871.)
J. D. TAYLOR,
Dy Clerk.
Subpeena duces tecum.—Issued February 27th, 1871.
State of Louisiana, eighth district court for the parish of Orleans.
C. S. SAUVINET
U8. No. 399.
J. A. WALKER.
To J. A. WALKER, Esq., New Orleans, La.:
You are hereby commanded, in the name of the eighth district court
for the parish of Orleans, to bring with you and produce in open court,
on Wednesday, the 1st day of March, 1871, at the hour of 10 a. m., to
be used in evidence at the trial of the above-entitled case by the plaint-
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16 Exception and challenge to jury, No. 2
JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 5
ifts therein, the State license and city license, which you are bound by
law to take in order to keep your coffee-house established.
13 And herein you are not to fail, under penalty of the law.
Witness the honorable Henry C. Dibble, judge of the said court,
this twenty-seventh day of February, 1871.
(Signed) ROBERT LYNNE,
Dy Clerk.
Sheriff’s return on foregoing.—Liled March 1st, 1871.
Received, New Orleans, February 28th, 1871, and on the same day,
month, and year served a copy of the within subpeena duces tecum on
the defendant herein, J. A. Walker, in person.
(Signed) P. CREAGH,
Coroner Ast, 4th, Sth, & 6th Disi’s.
Challenge to jury,
Highth district court.
C. S. SAUVINET
: Us. : No. 399.
J. A. WALKER.
14 - This case coming on to be tried before the court and a jury on
1st day of March, 1871, the defendant, by Hornor and Benedict
and A. A. Attocha, counsel, presented a challenge to the array of
the jury, and asked that the panel be quashed and set aside, and, as
grounds for such challenge, allege the following :
1st. The law is peremptory in ordering the sheriff of the parish of
Orleans to make, in the month of December, in each year, a list of the
qualified electors in the parish to serve as jurors in the civil courts. The
sheriff having failed to make such list in the month of December, 1870,
no jury for the year 1871 can be legally drawn.
2nd. The panel of jurors for the present term has not been drawa
from a list of qualified electors of the parish of Orleans, because,
1st. The sheriff has merely copied the list of registered voters ob-
tained from the State register, and though registration is an evi-
15 dence of qualification as an elecfor, non-registration is not evi-
dence of lack of qualification.
2nd. The law requires the sheriff to make his own list of qualified
electors, and he must not limit himself to the registration-list.
drd. The registration of voters preparatory to ‘the election of Novem-
ber, 1870, excluded many citizens who were disqualified by article 99 of
the constitution of the State; but at the election held on the 7th day of
November, 1870, an amendment to said article 99 was adopted, w hereby
a very large number of citizens excluded under the registration became
qualified electors, and their names should be on the jury-list for the
year 1871.
After hearing counsel, it is ordered by the court that the foregoing
exception and challenge be overruled.
Filed 1st March, 1871.
(Signed) J. D. TAYLOR,
Dy Clerk.
, filed 1st Mareh, 1871.
"s D. TAYLOR,
Dy Clerk.
3 \
JOSEPH A. WALKER V&. CHIARLES 8. SAUVINET.
Exception & challenge No. 2.—Filed March 1st, 187 ie
Eighth district court.
C. S. SAUVINET
U8. No. 399.
J. A. WALKER.
The defendant, by Hornor and Benedict and Attocha, ‘is counsel, in
addition to the challenge to the array of the jury, respectfully submit’
the following :
The sheriff of the parish of Orleans is a party to, and personally inter-
ested in this suit, hence a panel of jurors drawn and summoned by him
are incompetent to try the cause.
Testimony on exception, &c.
Filed March 1st, 1871.
Q. M. TENNISON, D’y Clerk.
Eighth district court.
C. S. SAUVINET
U8. ' No. 599.
J. A. WALKER.
17 Defendant files two exceptions, challenging the panel of jurors. -
F. M. SEGUR sworn for defendant.
Q. What is your occupation ?
A. Deputy sheriff.
@. Under whom?
A. Under Mr. Sauvinet, the sheriff.
Q. What part of the business of the sherifi’s office do yon attend to?
A. Iam chief deputy. :
Q. Do you know who drew this jury, called to serve in this case?
A. It was drawn by a deputy sheriff and a deputy clerk.
Q. Sauvinet’s deputy sheriff?
' A. Yes.
Q. Under Sauvinet’s order as sheriff and his direction ?
A. Yes.
@. Who made the list from which this jury was drawn ?
A. The list was made by both the deputies.
(. There was a list of jurors from which the several juries are
18 drawn ?
A. The list is on the book.
Q. Iam not speaking of the list drawn for this court; but has there
been a general list of jurors made by the sheriff, for jury purposes—
where did you get the names from, here to-day ?
. Those names were put on the book.
. Where were they drawn from ?
. From the ballot- box.
. How had the names got in the ballot-box; who put them there ?
. The ballot-box was prepared before I was in the office.
When did you get in the office?
. On the 23d of February, 1871.
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93
JOSEPH A. WALKER VS. CHARLES S. SAUVINET.
Q. Do you know who had prepared that ballot-box ?
A. I do not know.
Q. Who was chief deputy before you ?
. Mr. Walton; but he was not attending to the office. Sauvinet
ac attending to it.
- You do not know who made out this list of qualified electors ?
. No.
19 C.S. SAUVINET sworn for defendant.
Q. You are sheriff of the parish of Orleans?
A. Yes.
@. These names that have been called as jurors; where did they come
from ?
A. They came from the books of the registrar of voters. They are
taken from the list precinct books of the voters of the parish of Orleans.
(. In whose possession were those books ?
A. In the possession of the State registrar, Mr. Blanchard.
Q. Where did you obtain those books ?
A. Inever had them in my possession. I sent my deputies in Mr.
Blanchard’s office, and these names were coped 1 in his office.
~ Q. When was that ?
A. That was about 15 or 20 days ago.
(. Since the 1st of January ?
A. Yes.
Q. Those names were copied from the registration books by deputies
of yours?
A. Yes. |
20 (). Those registration-books that you speak of are of the last
registration, the registration of 1870? ;
A. Of the last election of the names of those citizens Who were enti-
tled to vote then. ‘
Q. Then you have made no list of your own?
_ A. I consider that I have made a list of my own, since those names
were copied from the registration books.
@. And that is the only list you have made?
' A. Yes.
(). And that is made since the 1st of January ?
A. Yes.
Cross-examined :
Q. These jurors now in attendance were drawn from that list?
A. Yes.
Q. The names of the jurors which you had copied were all placed in
that wheel ?
A. Yes.
Q. And these names were drawn from that box ?
21 A. Yes; from some 36,000 names.
Re-examined :
Q. Was the present jury drawn ‘from that list, the printed list pre-
pared in December ?
A. No; I will say this: These printed lists are lists of the names of
all citizens entitled to vote. Those lists were given to me by Mr. Blan-
chard, and I took them; but the list of jurors from which these names
were drawn was taken from the registrar’s books at his own office.
Therefore they are.just the same names as on these lists.
is: ae ee ee Mire Stee Pie PRA ae, oh cel hi
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23 tyes
ec
ee JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET.
(). Are those printed lists the lists from which you made your lists?
A. If you mean whether I made a copy from that list, name by name,
I should say no; but I would again say that the names were taken from
the books of the registration office, are the same as on that list.
22 Q. Where did you get these lists ?
A. From the registrar.
.Q. Did you make up these printed lists in person or by deputy ?
A. They were printed by. Mr. Blanchard.
@. You did not make them up by person or by deputy ?
A. No. |
Cross-examined :
Q. In December last did you procure a list of the qualified voters of
this parish ?
A. Yes.
Q. Which list or lists were submitted to the district judges, and ap-
proved by them?
A. Yes.
@. Which list is now in court?
A. Yes.
J. That list contains all the voters of the parish of Orleans ?
A. Yes.
@. But it does not contain their residences ?
A. No, sir.
@. Then when you were ordered to make a new panel of jurors,
23 you had to go back to the books of the registrar | ?
A. Yes.
(). You copied then the names from the books of the registrar ?
A. Yes; I copied from the books of the registrar.
Q. In order to get the residences?
A. Yes.
Q. These lists submitted to the judges in De¢ember, and which were
printed, do they contain the saine names as those you copied from the .
books of the registrar?
A. I could not § say positively as to that: I presume they do.
Q. These printed lists were prepared from the books?
A. They are from Mr. Blanchard, and they were given to me as the
real list of voters.
Re-examined :
Q. Do you know that this list contains all. the names of the qualified
voters of the parish, on the 26th of Dec., 1870?
A. Of course the lists were printed before that time, and there
24 may have been persons who have become voters since it was
printed. .
Q. Do you know that it contains all the names of all the voters on
the 1st of December, 1870?
A. They were given to me as such.
Q. Did you ever compare these lists with the lists in Mr. Blanchard’s
office, from which you obtained your list?
A. No.
Q. Did you ever employ a deputy to do it ?
A. No, sir; I employed a number of deputies to copy the names from
the books.
Q.. But they never compared these names with the names on these
printed lists ?
~e,
~~
~~“?
JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 9
A. No. |
q. You are the plaintiif in the case ?
A. Yes
Defendant offers in evidence the printed list of qualified voters.
25 Exceptions, &c., sustained.—Minutes, March 1st, 1871.
Present the Hon. H. C. Dibble, judge.
Eighth district court.
C. S. SAUVINET Q
US. No. 399.
J. A. WALKER ET AL. \
This case, fixed for this day for trial by jury, came on.
’ Present, EK. Filleul &eA. P. Field for plaintiff.
Present, Hornor & Benedict, & Attocha, for defendant.
Counsel for defendant offers two peremptory challenges to the array
of jurors in attendance, which challenges are filed and numbered No. 1
and No. 2; the first of which the court overruled, and the second of
which the court sustained, and ordered this cause to be continued to be
called on Saturday, March 4th, 1871.
-
Venire facias.—Issued March 8th, 1871.
26 Highth district court, for the parish of Orleans, the State of
Louisiana.
©. S. SAUVINET
US. No. 399.
' J. A. WALKER ET ALS. (
To Patrick Creagh, coroner of Ist, 4th, 5th, & 6th distriets of New Or-
leans, ereeting: ,
You are hereby commanded, in the name of the State of Louisiana
and of the eighth district court forjthe parish of Orleans, to draw,
according to law, a panel of sev enty- -five qualified petit jurors, to try
the case of C. S. Sauvinet vs. J. A. Walker et als., now pending before
this honorable court, said jurors to be in attendance before our said
court on Thursday, March 16th, 1871, at 10 o’clock a.m. And herein
fail not under penalty of the law.
Witness the honorable Henry C. Dibble, judge of our said
27 court, at the city of New Orleans, this eighth day of March, in
the year of our Lord eighteen hundred and seventy-one, and in
the ninety-fifth year of the Independence of the United States.
(Sige) J. D. TAYLOR,
| Dy Clerk.
Sheriff’s return on the foregoing.
Filed 15th March, 1871.
ROBERT LYNNE, D’y Clerk.
Received March. 9th, 1871, and on the 10th day of the same month
and year, executed the within order of court, by drawing a panel of
10 JOSEPH A. WALKER VS. CHARLES S. SAUVINET.
seventy-five qualified jurors, to be and appear before the honorable the
eighth district court, for the parish of Orleans, on Thursday, the 16th
day of March, 1871, there to remain until finally discharged by said:
honorable court.
3 P. CREAGH,
Coroner 1st, 4th, 5th, & 6th districts,
-for the parish of: Orleans.
28 Motion for subpcana duces tecum.
Eighth district court.
C. S. SAUVINET
US. No. 399.
J. A. WALKER.
Minutes March 6th, 1871. ,
On motion of E. Filleul, of counsel for Sauvinet, it is ordered that a
subpcena duces tecum issue to J. A. Walker, commanding him to pro-
duce into court his State and city license for the year 1871 and 1870,
on Friday, the 19th instant, at 10 o’clock, on the trial of this case.
Filed March 6th, 1871.
T. D. TAYLOR, D’y Clerk.
Subpena duces tecum.—Issued March 16th, 1871.
State of Louisiana, eighth district court-for the parish of Orleans.
C. S. SAUVINET
v8. No. 399.
J. A. WALKER ET ALS.
To J. A. Walker, esq., of New Orleans, La. :
29 You are hereby commanded, in the name of the eighth district
_ court, for the parish of Orleans, to bring with you and produce in
open court on Friday, the 17th day of March, 1871, at the hour of 10
a.m., to be used in evidence at the trial of the above-entitled case, by
pe plaintiff therein, your State and city license for the years 1871 and
1870.
And herein you are not to fail under penalty of the law.
Witness the honorable Henry C. Dibble, judge of the said court,
this 16th day of March, 1871.
SOBERT LYNNE, D’y Clerk.
Sheriff’s return on foregoing.—Filed March 16th, 1871.
Received March 16th, and on the same day, month and year, served
copy of within subpcena duces tecum on J. A. Walker, defendant
30 _—iherein, by leaving the same in the hands of Mr. Oari, a person
apparently over the age of twenty-one years, living and residing c
with said defendant, at his domicil on Royal st., between Canal and
Custom-house.
Returned same day.
K. CHIXI,
D’y Coroner for 1st, 4th, 5th & 6th
districts of New Orleans.
»
JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET.
Testimony.—Filed March 16th, 1871.
Highth district court.
C. S. SAUVINET
U8. No. 399.
J. A. WALKER ET ALS.
Index.
Examination of McConnell as juror. Suit discontinued as to F. Land
fried. Blank license marked A.
McCoNNELL called as a juror, upon being asked whether he had
formed any opinion upon this case, said that he had an opinion,
ol and that it would require strong evidence to convince him to the
contrary. He said, however, that he should endeavor as a juror
to find a fair verdict, according to the law and the evidences. He
said further, that, in his opinion, it was the duty of all law-abiding citt-
zens to obey such laws as should be passed and duly signed.
(The above is noted down at the request of counsel for the purpose of
framing a bill of exceptions to the ruling of the court in regard to the
qualification of this juror.)
The jury being completed, duly empanneled and sworn, the plaintiff
discontinues the suit in so far as it concerned F. Landfried, the co-de-
fendant.
C. S. SAUVINET, plaintiff, sworn : 3
q. Will you please state where you were born ?
2 A. I was born in the city of New Orleans, in this city.
(). What is your age?
A. 42 years.
(). You have always resided here?
A. Alw ays; with the exception of several years when I was traveling
abroad.
@. You are a registered voter ?
A. Iam.
@. Of the parish of Orleans ?
A. Yes.
Q. a have been elected sheriff at the last election by the people? -
A. Yes.
(). And you are now discharging the functions of this office ?
A. Yes, [ am.
° You have also been an alderman of the city of New Orleans ?
A. I have.
Q. You served in the United States Army ?
: A. Yes; I held the rank of full captain and A. Q. M., United
dd States Army, commissioned by special act of Congress, signed
by the President of the United States, and honorably discharged
long after the war had ended.
@. State what took place on the 20th of January, in the Bank saloon
on Royal street.
A. On the 20th of January last, 1871, two gentlemen came into my
office of the civil sheriff of the parish of Orleans, and after some conver-
sation with me, as I was about going up town, we went up together.
These gentlemen were Mr. Finnegan and Mr. Conklin and Mr. Lynne,
* z ‘
aman eget. wns naan acy eareanininy stg senvenepm gc maperetanrs tienes eincerine:ieapsitr bmcnpy ai a cearnee = gag me $ : ,
12 JOSEPH A. WALKER VS. CHARLES 8. SAUVINET.
here present. We started from the office and went up the street. Mr.
Finné’an invited the crowd about us, three or four persons, to take a
drink. Mr. Lynne, here present, was going to the State auditor’s
o4 Office ; left us at the corner of Conti and Royal streets. Mr. Fin-
negan, Mr. Conklin, and myself proceeded up the street; when
we got to the corner of Bienvilleand Royal, as Mr. Finne’an had invited
me to take a drink with him, I asked him to go to a certain bar-room
where I have, more or less, been in the habit of going, at the corner of
Exchange alley and Bienville streets. He objected to it for this reason,
because in the French part of the city there were not good liquors.
When we passed by the Sasarac I asked him to go in there, but he said
‘¢ No, let us go to the ‘ Bank,’ and we will have better liquors.” I had cer-
tainly no objection to going to the *“* Bank” more than to any other place ;
and, as I was invited, of course [ followed him, and I was refused a
drink.
30 @. Were those two other gentlemen with you also refused
drinks ?
A. The other two gentlemen with me, one of ayhom had invited me to
take a drink, were not given a drink.
Q. Who were they ?
A. Mr. Finnegan and—I must refer to my memorandum-book to give
the initials—W. H. Finnegan and H. T. Conklin.
Q. You say you were refused a drink ?
A. I was refused a drink.
@. Did you ask the waiter there to serve you?
A. I asked the bar-keeper, as any man going into a bar-room.
(). Did you not ask the waiter the reason for his refusal to serve you ?
A. When I went in with those two gentlemen I went, of course,
straight to the bar, and I saw, or thought I saw, a disposition in
06 the bar-keeper not to attend to me. When by his acts I became
convinced that he hada motive, I called upon him to serve us and
give us a drink, and he said he could not. I asked him the reason, and
he said “‘ Never mind, it is all right.” Says I, “Sir, why do you not give
meadrink?” He said, ** Never mind, it is all right.” Iasked him sev-
' eral questions, and he never would answer any one of them, but all his
answers were, “Never mind, itis allright” always. One of the two
gentlemen with me, Mr. Conklin, wanted to know exactly why, and,
as I did not wish in my position to raise what is commonly called a
fuss in a public bar-room full of people, I said to this gentleman, *“* Very
well. i know why he refuses. It is because Iam said to be a colored
man.”
OT Q. What did the waiter say ?
A. Never anything but “Never mind, it is all right.” That is
all he ever said. :
Q. Who keeps that place? .
A. Mr. Walker, I understand, keeps it.
Q. Is the building in which the establishment is kept under seizure ?
A. The sheriff has the collection in the case of Haggerty vs. Haggerty
of the rental of the building in which the establishment is kept, and the
sheriff collects the rent monthly.
Q. Had you occasion to go several times to collect the rent from
Walker?
(Objected to as irrelevant. Objection overruled.)
A. Yes, sir.
Q. State what took place.
A. On or about the 14th of January, 1871, I had occasion, in my offi-
Ab
JOSEPH A.- WALKER VS. CHARLES 8. SAUVINET. © 13
cial capacity as sheriff of the parish of Orleans, to go to Walker's
dd saloon, or the “ Bank,” as it is called, and, on making enquiry if
W alker was there, I was desired to go up- stairs in his private of-
fice. I went up, [saw Walker, and we had a very friendly and agreea-
ble interview. He settled up the rent with me, and after having settled
up the rent, after having paid me the rent, he invited me to a glass of
wine. I accepted of it, but, seeing that he was about taking a bottle of
champagne—I am _ particular about this—I told him that I did not like
champagne, and we took then together a drink of whiskey or cognac.
Then Mr. Walker said, ‘‘I have a favor to ask of you.” ‘ Very well,” I
said, “if I can do it, I shall do it.”. Then he weut on and said that he
had been told that I was a colored man, and so on, and that my
OU ‘oming to his house would injure him, and he asked me as a favor
not to come to his bar—to his saloon. My answer was just this,
that I had always drank in all houses, and that it waS too late now for
me to go back; that what he said to me would not make me or cause
me to go oftener there that I used to do in his place; but that what he
had just said would not cause me to go there less often than I had pre-
viously went to his place. We parted, seemingly not less friends, and I
never thought for a moment that by accidentally going to his place I
should have been refused a drink. That was all the conversation which
passed between us.
(). Were other persons in the house drinking at the time you went
in?
40 A. It was about 12 o’clock, and there were a great many men
there. it was lunch time, and the table ‘was crowded 3 or 4 rows
deep. j
Q. Did you not discover others drinking? Were they not serving
others ?
A. At the very moment that I went in I do not know that there
were any persons actually drinking at the bar.
(. But that is a place where they assemble and drink ?
A. Undoubtedly.
(). You have been there before ?
A, Times and times over, and I had even drank on special invitation
of the proprietor at his own bar once, if not more.
(). Previous to his saying that he understood you to be a colored man,
and his requesting you not to come to his bar?
A. Yes.
41 (). You had drank there previous to that?
A. Yes.
@. These gentlemen with you, were they creating any disturbance or
were you creating any ?
A. We walked just as gentlemen walk into a bar-room to take a
drink, and go out. Even after having been refused we did not create
any disturbance; we avoided. The first time when the bar-keeper
would not serve us I wanted to know why. He said “ Never mind, that
is all right,” and that was all the answer he gave.
(). He kept on refusing ?
«A. Yes, and not he only, but also refused the others.
q. Where was Walker at that time?
A, I do not know.
@. You did not see him in the house?
A. He may have been there.
Q. What is the name of this bar-keeper ?
A. I do not know.
14 JOSEPH A. WALKER VS. CHARLES 8. SAUVINET.
42 Q. Do you see him in the court here ?
A. If I mistake not he is sitting over there.
Q. They have liquors, I suppose, there of every description ?
A. It was a public bar-room, certainly.
Q. I suppose you had been in the habit of going to bar-rooms in the
city before?
_ A. I have been in the habit of going to all the bar-rooms for the last
25 years.
(). At different places in the city ?
A. All places indiscrim/ately. _
Q. Look at this blank license.
A. Yes.
@. Where was this blank given to you?
(Counsel for defendant objects to any evidence in reierence to this
blank license as. irrelevant. Admitted to prove that this is the general
form of license; but not to prove that it was so issued in this particular
case.)
43 Q. Where did you get that blank form? :
A. From Mr. Chadwick, in the department, or from the depart-
ment of finances in the city of New Orleans. It was given to me as the
license issued.
(Objected to.)
Q. Is that the place from whence licenses emanate ?
A. That is the place.
Plaintiff offers in evidence this blank-form of license marked A, now
filed.
(Objected to by counsel for defendant.)
: O. M. TENNISON,
Dy Clerk.
Document “A.”—Blank form of license.
Filed March 16th, 1871.
O. M. TENNISON,
Dy Clerk.
City of New Orleans, license for the year 1871. Department of public |
accounts, No. , January 1, 1871. |
44 The administrator of finance will receive from the sum of
dollars for license to carry on the business of until
December 3, 1871, subject to the provisions, of ordinance No. 571, admin-
istration series, and of the several acts of the legislature regulating
licenses.
P. RB. R. int. tax.
For Administrator of Public Accounts.
DEPARTMENT OF FINANCE,
New Orleans, , 1871.
I hereby certify that the above-named sum has been paid in this office.
SAI IY FN A ona eiiintiicataeeate = — —
: : 1 te ty i EE a lhc Pi atti ia 2 Wee reper tinned
iad SSE oe OG OR A igre ip PALMAR Pe Mt n - 4h ¥
ait TAS Re a ag ie oe ae
Be ee ee Ee aa en ty ;
ee 2 f -
niintieete
-. JOSEPH A. WALKER V8. CHARLES 8. SAUVINET. 15
For Administrator of Finance.
NotTE.—This license must be hung up ina conspicuous place in your
office, under penalty of the fine imposed by sec. 75 of ordinance No. 571,
administration series.
AD Revised statutes.
SECTION 458. All licenses hereafter granted by this State, and by all
parishes and municipalities therein, to persons engaged in business or
keeping places of public resort, shall contain the express condition that
the place of business or public resort shall be open to the accommoda-
tion and patronage of all persons, without distinction or discrimination
on account of race or color, and any person who shall violate the con-
dition of such license shall, on conviction thereof, be punished by forfeit-
ure of his license, and his place of business or of public resort shall be
closed ; and, moreover, he shall be liable, at the suit of the person
aggrieved, to such damages as he shall sustain thereby, before any court
’ of competent jurisdiction.
46 Mr. Walker has taken his license this year, with this endorse-
ment on January 28th, 1871. 1st class coffee-house, $250. No. of
license, 392.
Minutes. March 16th, 1871.
Eighth district court.
C. S. SAUVINET
US. No. 399.
J. A. WALKER ET ALS.
This case, fixed for this day, for trial by jury, came on. Present, Huornor
& Benedict & A. Attocha for defendant.
Present, E. Filleul, A. P. Field, for plaintiff.
After four peremptory challenges on the part of plaintiff to jurors
regularly summoned, and two peremptory challenges on the part of de-
fendant, the following-named persons were drawn from the panel of
jurors summoned to try this case, were called to the book and sworn, to
wit:
. JOSEPH BLASKI.
D. A. BLANCHARD.
. HENRY PARLOGUULE.
. HENRY HASSMAN.
. PIERRE REYES.
. JOSEPH PIGEAUX.
. HONORE COFFY.
. HENRY WEBER, S’R.
. PATRICK GRADY.
. EDW. VORSTER.
47
SWOMAND OP who
eo
~The panel of jurors summoned being exhausted, and the jury to try
this case not yet. complete,
The court ordered that talismen, having the requisite legal qualifica-
tions to act as jurors, be summoned from among the persons present,
which being done, and after two peremptory challenges on the part of
16 - JOSEPH A.WALKER VS. CHARLES 8. SAUVINET.
| actin
the defendants, the following-named talismen were called to the book
and sworn in to try this case, to wit:
Mr. M. Feeny and John Longmiere.
The jury being complete, the court appointed John Longmiere fore.
: man, and the trial of the case was proceeded with.
48 When, after hearing pleading and testimony, this case was or-
dered to be continued to to-morrow, at 11 o’clock a. m., and that
the jurors empanelled to try this case were discharged till that day and
hour. }
The other jurors in attendance were finally discharged.
Testimony. Filed March 17th, 1871.
Eighth district court.
4
|
|
C. S. SAUVINET
US. No. 399.
J. A. WALKER ET ALS.
Index.
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C. S. SAUVINET recalled:
49 The testimony of previous day being read over to the witness,
witness says: *'There is, I think, an error in regard to my ask-
ing more than one bar-keeper. I do not think I asked more than one.”
Q. Where is that establishment located? |
A. On Royal street, between Canal and Custom-house. It is called
the “ Bank” place.
Cross-examined :
Q. When you went into the bar-room and applied to the bar-keeper
for a drink, you say that he answered that he could not give it to you?
. He refused it.
. These gentlemen who were with you, were they refused too ?
. They were.
» Did they ask for it ?
They did.
. What was their language ?
. They asked for a drink. We went in together. We went solely
and for the simple purpose of taking a drink.
50 Q. You have detailed the conversation between yourself and
the bar-keeper ; now detail the conversation between Mr. Finne-
gan and the bar-keeper. :
A. I could not, of course, remember the exact words. Of course it
was a matter so strange to me, so entirely unexpected, that it threw me,
I might say, off my guard. These two gentlemen—lI had been invited
bO>obeob>
JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 17
by one of them to take a drink, and not expecting for a moment that
that simple thing would be refused. It put me, as you might expect,
somewhat out of my ordinary state of mind, but, at the same time, I
never lost for a single moment the respect that I was owing to myself
in my Official capacity. I knew that under the law I was to be pro-
tected. I knew that I had, as an officer of the law, to respect the
law. Therefore I went out, and I prevented, through my coun-
51 sel, one of the other gentlemen from creating, as I said before,
what might have been a fuss in the bar-room, and walked out.
Q. Then I understand you to say that you cannot remember the con- -
versation betwecn Finuegan and the bar-keeper ?
A. Finnegan is here. We both went—three of us together. I was
refused a drink. The others asked why, and the same answer was
given to them as to me, and the same treatment offered them as was
given to me.
Q. Dol understand you to say that you cannot remember the con
versation between Finnegan and the bar-keeper ?
A. I say that I cannot detail it.
Q.: How does it happen that you are able to detail so accurately your
Own conversation, and cannot remember that of Finnegan with the bar-
keeper ?
52 A. Because it is a personal matter between him and me, and I
acted as the principal in that.
Q. Do you remember the‘conversation your other friend and the
bar-keeper ?
A. As I said, I could not detail it.
Q. Are you a colored man? —
(Objected to as irrelevant. Objection overruled, and counsel for
plaintiff reserves a point for a bill of exceptions.)
A. Well, I will answer directly to your point. Whether I am or not
is a matter that I do not know myself. But I am, and was legally, for
‘his reason: That prior to the war, and before the Congress of the
United States had passed laws granting and giving citizenship to men
born on the soil, whether colored or not, you had always refused me, .
though born and raised here, the right to vote and to exercise the rights
of citizenship.
53 @. Was it not your habit, before the war, to go into different
saloons and bar-rooms and drink as other white men did?
A. Yes, sir.
Q. These two gentlemen, Finnegan and Conklin, that were with you,
are they white men?
A. They are said to be. I do not know.
Q. To all external appearances they are?
A. Yes, sir.
Re-examined : |
Q. You say that previous to the war, and previous to this new state
of things, the passage of the act of Congress and the amendment to
the Constitution of the United States, you were denied the rights of
suffrage ?
A. Yes.
Q. On account of your race ?
A. Yes, sir. I never enjoyed it.
Q. You were denied this right on account of ‘your race ?
(Objected to as leading.)
54 Q. You state you were denied this right of voting and exer-
REc. 350—2
18 | JOSEPH A. WALKER V8. CHARLES 8. SAUVINET.
cising the rights of citizenship because of the fact that you were
supposed to be a person of color?
A. Yes; most particularly. —
Q. Was not such the general reputation in the community that you
were a person of color; and was not that the reason that you were ex-
cluded trom the right of citizenship and holding office ?
A. Yes; and even as late as the late election one of the leading
newspapers of the city said that-I was a negro. I can offer that in evi-
dence.
Cross-examined:
Q. You say that before the war you were denied the right of suffrage,
&c., on account of your being reputed to be a colored man ?
A. Yes.
Q. Did you ever apply for that right ?
55 A. I never did.
Q. Did you ever become a candidate, or attempt to become a
ae for any office before the war ?
A. No
Q. Did you ever apply for any other rights of citizenship ?
A. I never did.
Q. When you go among stran gers are yea not received as a white
man ?
A. [am received as a gentleman. I never enquired whether I was
received one way or the other.
Q. Has it not been your custom to let it be generally known and
understood that you are a white man ?
(Objected to as irrelevant. Overruled.)
A. I should answer that I am very much astonished that I should
be wanted to be proven a white man, when a few peers ago I was
called a negro.
56 Q. Answer the question.
A. I can only answer this way—no; because everybody knew
that it was not.
Q. That what was not ?
A. Just this: that I was not a white man, because I was refused all
the rights inherant to that title; and how can a man be a white man
and be refused that ?
Q. He might have been a foreigner.
_A. Then I am not; because everybody knows that I was born here.
Q. Have you never said that both your parents were white persons?
A. That both my parents were foreigners.
Q. Answer the question. Have you never said that both your parents
were white persons? —
A. I do not know.
Q. You do not know whether you have ever said that both your
parents were white persons ?
57 A. I do not know that I have ever said so. I stated, and I
state again, that they were both foreigners, born outside of the
limits of the United States.
Q. Have you not stated that you are as much a white man, and of
white blood, as any man in the community ?
A. I have so stated. Aint I?
Counsel for plaintiff calls for the production by the defendant of his
license from the city and State, under the subpoena duces tecum. Be-
i |
New
19
ing called upon to produce these licenses from the city and State, called
for by the subpeena duces tecum, defendant admits that he has a sim-
ilar license, as the blank form marked A, together with the endorse-
ments printed on the back of this blank license, and also admits
58 that he made application to the city in the form marked B, and
also that he has a similar State license to the blank license
marked C, together with the endorsements printed on the back.
Plaintiff offers in evidence these blank forms above referred to, marked
A, B, and C respectively, now filed.
W. H. FINNEGAN sworn for plaintiff :
Q. Where do you live?
A. In New Orleans. :
Q. = you acquainted with Mr. Sauvinet, the plaintiff ?
A. Yes.
Q. Will you state what took place on the 20th of January, when you
went to the “ Bank” saloon with Sauvinet ? :
A. I had occasion to call on Sauvinet that day, or on or about that
day, to see him on some business connected with his office, and
59 this gentleman, Mr. Conklin, with me; also had business in con-
nection with an injunction I had in court. I wanted Sauvinet
to give it his early attention, and have the process served, and after
talking with him a few minutes, we walked up Royal street. I believe
Mr. Lynne was in company with us. We went up Royal street as far
as Conti. I proposed that we should treat. I felt exhausted. Mr.
Lynne excused himself, saying that he was going on business, in the
auditor’s office, I believe. He left us there. We proceeded along Royal
street till we came to the “ Bank.” I suggested that the best place to
get a drink would be in a first-class coffee-house. We. went in. I
came to the “Bank” with Conklin and Sauvinet, and after a
60 moment or two I addressed the bar-keeper there. He went to-
wards the street window, and did not seem to pay any attention.
I motioned to him that we wanted to be served. He shook his head
and appeared to be excited. He was rather pale in the face, and
looked excited. Conklin again asked him, or told him that we wanted
a drink, and he shook his head and said. He did not use any words at
the time, but he shook his head and did not seem to make any reply.
We again asked, and he again said, “That is all right if you “
*¢ I¢ is all right if you——.” 1Idonot know exactly whether he said
that we should have any drink or not; but his motions were such, so
indifferent, that he did not seem to want to wait onus. After a moment
or two he went around and seemed embarrassed. Sauvinet now
61 suggested that we had better go out. Conklin said to the bar-
keeper, ‘“‘ What is the reason you would not serve us?” He said,
«“ That is nothing, it is all right,” or something of. that kind, and looked
upon it very indifferent, as if he did not care. I insisted upon having
an understanding; but Sauvinet said, ‘‘ No, we had better not,” and
took me towards the door. Conklin remained behind. In fact, I do
not know what Conklin said, but it was that he wanted to have an ex-
planation, and wanted to know why we were refused. I did not know
the reason at the time, but Sauvinet suggested that we had better go
out, and he said, “ 1 know the reason why we were refused.” He did
JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET.
‘not say then, I believe, exactly, that he was a colored man, but he was
embarrassed, and we all felf much mortified. We then pro-
62 ceeded along up to St. Charles st., and I then did not know or
understand the reason we were refused, but Sauvinet said that he
20 JOSEPH A. WALKER VS. CHARLES 8. SAUVINET.
knew the reason, and we went on to Carondelet street, and there he
said that the reason was that he was reported to be a colored man, and
Walker had told him before in some business transaction—— |
(Counsel for defendant objects to witness testifying to anything which
_Sauvinet said about his conversation to Walker.)
Q. Told him what ?
A. Before he gave me to understand the cause of the refusal he said
-that in some business transaction with Walker he had invited him to
his room and said to him, “If you go to my roon, it is all right, but
if you go to my bar-room you do me an injury, because persons
63 say you area colored man.” Then the cause struck me at once.
I did not know that Sauvinet was a colored man by his appearance.
Before we went to Carondelet street, we went to Santini’s, and, not
knowing why he was refused, we wanted to know the reason, and then
went on to Carondelet street, and at the corner there it was that Sau-
vinet gave the reason why he was refused, and he said that he had
drank there often at the “ Bank,” but that Walker had said that he
would do him a favor by not coming there, because people said he was
a colored man, or something of that kind.
Q. Had you ever been in that establishment before to drink?
A. Yes, sir; several times.
Q. They knew you there ?
A. I have been several times during the winter, and have often
64 had drinks there. It is considered a first-class house.
Q. Do they know you there?
A. Probably by appearance.
Q. You have drank there several times and never been refused be-
fore ?
A. No, I was not refused.
Q. When Sauvinet, Conklin, and yourself went into the bar-room what
was your conduct ?
A. We went.in quietly and went directly to the bar—there was a large
crowd in there—and we called for drinks.
Q. They had liquors there and served them out to others ?
A. The young man seemed to come to us, but went by towards the
window, and did not seem to pay any attention to us, and on his
return I asked for drinks: He was very pale and excited and shook
his head. He did not use any language at all but shook his head when
Sauvinet asked, “‘ Letus have some drinks,” and “ Why doyou not
65 Serve US,” OF something of that kind, and the bar-keeper said,
“Well, it is all right,” and “ It isall right. ” I thought it was just
as much as to say that if we insisted upon it we would have trouble.
Sauvinet took me by the arm and walked towards the door.
Q. a heard Sauvinet ask the bar-keeper for drinks?
A. Yes
Q. And he shook his head?
A. I asked him for drinks and he shook his head to me, and after-
wards Sauvinet asked him for drinks, or simply motioned to him, and
he shook his head again and said, “ That is all right,” or “‘ That will do.”
Then we went to the door, and Conklin remained and said, ‘* What is the
reason you refused us drinks?” .I did not hear the reply. Sauvinet
was anxious to go, and outside hesaid. ‘I know the reason why
66 he refused us.” Conklin joined us, and we went towards St. Charles
street. He did not explain the reason then. We went to Santini’s,
and from there we went along Common street. We went in Santini’s
‘first and took drinks. I believe [ paid for them. Sauvinet then took
. ad
JOSEPH A. WALKER VS. CHARLES S. SAUVINET. 21
out his memorandum- book, and he asked my initials, and also Conklin’s.
We then went along to Carondelet street, and he explained the reason,
and gave us along history, describing the language in which Walk-
er had notified him before, in some business transaction, that he would
do him a favor by not coming te his saloon, as he was reported to be a
colored man. I sympathised with Sauvinet and his motive, and did not
want to exact from Sauvinet whether he was colored. He said “I am
well known there, and it is on my account that we were refused.”
67 Q. Santini’s was a first-class coftee-house ?
A. Yes.
Q. No objection was made there to his ee
A. No; the clerk waited on us. :
Q. Sauvinet drank there ?
A. Yes.
Q. Where is Conklin ?
A. He resides, I believe, on Polymnia street. I do not know whether
he is there now. I have not seen him for a week or ten days.
Q. Was the attention of the people in the bar-room attracted to the
fact that the bar-keeper had refused you drinks ?
A. No, not mach so, because we were quiet, and Sauvinet seemed to
be embarrassed, and did not want to have a row.
Q. You say that you felt mortified, and Sauvinet seemed to be very
much so ?
A. —_ he seemed troubled, and seemed to be very much ex-
cited.
68 1° What did Sauvinet say when you withdrew from the “ Bank”
saloon? .
A. Sauvinet took me by the arm and said, “‘ I know the reason,” but
he did not say then what was the reason.
PATRICK CREAGH sworn for plaintiff.
~Q. ¥ou received the subpcena for Conklin ?
A. Yes.
Q. State whether you have been able to serve it.
A. I served it at the residence where he had been stopping. The
name of W. W. McGarritty is on the door, number 34 Polymnia st.
About a month ago, when this trial first began, I found Conklin in that
house, and I served him personally. This time I went with the subpcena
there and I saw a colored woman coming out, and Mr. McGarritty
69 was taking dinner. I do not know whether Conklin was in. I
have sent three attachments after him.
Q. You have made dilligent enquiry after him ?
A. Yes. :
Q. And used all dilligence necessary to find him, and have not suc-
ceeded ?
A. Yes, I have, and I have not succeeded.
Avetst DE BLANC sworn for plaintiff.
Q. How old are you?
A. Sixty, and over.
Q. You were born in the States?
A. Yes, sir.
Q. You have always resided in Louisiana?
22 JOSEPH A. WALKER VS. CHARLES 8. SAUVINET.
A. Yes, sir; part of the time in New Orleans, and a part of the time
in St. John the Baptist.
Q. Were you born in St. John the Baptist ?
A. No; in the city of New Orleans. . .
Q. You are accquainted with Sauvinet ?
A. Yes, sir.
70 Q. For many years, I suppose ?
A. Fifteen years, I suppose.
Q. What reputation has he as regards color?
(Objected to.)
(Objection overruled, and the point reserved by counsel for defend-
ant for a bill of exception. )
A. Well, sir, he has passed always for a colored man.
. He has that general reputation 2
. Yes, Sir. )
V. MoCaRTHEY sworn for plaintiff.
. How old are you?
. Sixty-one years.
. Were you born in this city ?
Yes, sir.
. Have you always resided here ?
. Yes, it has always been my domicile, since I was born; but I have
absented myself, and been gone to Europe.
Q. Do you know Sauvinet ?
A. Yes.
71 Q. How long have you known him?
A. More than twenty-five years; since he was a child.
2. — is his general reputation in the community, as regards
color
A. I never heard anybody say whether he was white or colored.
Es a is his reputation in the community; does he pass for a man
of color
A. I think Sauvinet was very much embarrassed to tell his origin, as
a great many other people. Some people might take him as a white
man, and others as a colored man.
>bOP>OoPOoW poh
EDMOND CAMPANEL sworn for plaintiff :
Q. Were you born in the city ?
A. Yes
Q. And reside in New Orleans?
A. Yes.
Q. How old are you?
' A. Fifty-five years.
Q. Do you know Sauvinet?
72 A. Yes.
Q. What is his general reputation in the community ? Is he
considered a white or colored man ?
A. He has the reputation of being a colored man.
Q. How long have you known him ?
A. Since his childhood.
PATRICK CREAGH recalled for plaintiff:
Q. Do you know Sauvinet ?
A.. A good many years; yes.
— -->
—— a me
eight hundred & seventy.
JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 23
Q. State what reputation he ‘ell in regard to color, whether as a
white or colored man ?
A. Before the war I thought he was a white man. I never heard be-
fore the war that he was a colored man.
Q. How long have you heard that he was a colored man ?
A. Since the war, but not before that. .
@. Was he regarded before the last election as a colored
73 man ?
A. Yes.
Q. The public papers and everybody knew it ?
A. Yes, all regarded him as a colored man before the last election.
Q. Before the war you had not heard anything about it ?
A. Not anything in regard to his being a man of color. I saw him
associating all the time with white men.
Q. At the last election, or previous to the election, he was regarded
as a colored man ?
A. Yes, as a colored man.
‘Q. When Sauvinet was elected sheriff, and nominated, did not all the
community know he was a colored man }
A. He got nominated as such; that I know. He got nominated as
a colored man. All the community regarded him as such, and the con-
vention that nominated him regarded him as & colored man.
14 Cross-examined :
Q. Who nominated Sauvinet ?
A. The republican convention—the parish convention.
Q. They, you say, nominated him as a colored man ?
A. I think so; yes.
Q. Are you able to state whether his seeking to obtain the nomina-
tion as a colored man was, or not, a dodge to obtain the nomination ?
A. I do not know.
Q. You do not know whether that was not a dodge to induce people
to vote for him?
A. I do not know that—— :
Plaintiff closes.
Defendant offers no testimony.
DOCUMENT “ B.”
Coffee-house license in blank.
Filed March 17th, 1871. .
O. W. TENNISON, D’y Clerk.
Mayoralty of New Orleans. Coffee-house and beer-house license, for
the year 1870.
75 No. No. street.
Mr. having furnished the security required by law, is
hereby permitted to retail spirituous liquors until December 31, 1871.
He shall conform to all the city ordinances relative to coffee- houses,
&c., and shall pay for this license to the city treasurer, in advance.
Given at the city-hall of New Orleans, , one thousand
- vt ee oe ns Ns Sie ood oA hen hes C ethic ae
24 JOSEPH A. WALKER VS. CHARLES 8. SAUVINET.
CiTy OF NEW ORLEANS,
Treasurer’s Office, 1870.
No. |]
Received from , | dollars. The tax on the above license
for — 1870.
Treasurer.
P.R. BR.
Controller.
DocuMENT “ C.” .
State license in blank.
Filed March 17th, 1871. 1 |
76 2 O. W. TENNISON, Dy Clerk.
Seventy-five dollars license.
STATE OF LOUISIANA,
Auditor’s office :
Having paid seventy-five dollars to the State of Louisiana, 18
hereby licensed to pursue and follow the occupation of for the
year ending December 31st, one thousand eight hundred and seventy-
one.
Auditor.
—_— payment this day of . , 1871.
0.
Collector.
Act 38—approved February 23rd, 1869.
SEc. 3. Thai all licenses hereafter granted by this State, and by all
parishes and municipalities therein, to persons engaged in business, or
keeping places of public resort, shall contain the express condi-
%7 tion that the place of business or public resort shall be open to
the accommodation and patronage of all persons, without dis-
tinction or discrimination on account of race or color, and any person
who shall violate the condition of such license shall, on conviction
thereof, be punished by forfeiture of his license, and his place of business
or public resort shall be closed, and, moreover, shall be liable at the suit
of the person aggrieved to such damages as he shall sustain thereby,
‘before any court of competent jurisdiction.
Sec. 4. That for violation of any of the provisions of the first and
second sections of this act, the party injured shall have a right of action
to recover any damage, exemplary, as well as actual, which he may sus-
tain, before any court of competent jurisdiction.
78 All coffee-houses, bar-rooms, grog-shops, or cabarets, shall be
divided into the following classes, and shall pay the licenses affixed
respectively thereto, viz: ’
_ THTRD CLASS.—Those whose sales are less than five thousand dollars,
seventy-five dollars per annum.
All retail groceries selling liquors by the glass shall pay, in addition
to the grocery license, the third-class coffee-house license.
Each partner of any firm doing business in this State, in any line of
.
¢. ee _—
.
¢. > ee
* .
JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 25
occupation, whether resident or non-resident, active or silent, shall
pay a license as herein prescribed.
Each and every person having more than one store or other
establishment or place of business, or following more than one trade or
profession, shall pay the license upon each separately.
79 Submitted minutes, March 17th.
Highth district court. .
€. 8. SAUVINET
U8. No. 399.
J. A. WALKER.
This case, continued to this day for trial by jury, came on. -
Present, E. Filleul & A. B. Field for pl’ff; Hornor, Benedict & At-
tocha for defendant. |
The roll of the jury empanelled to try this case having been called,
and each juror being present, the trial of the case was proceeded with.
After hearing further testimony and argument of counsel, the jury re-
ceived the charge of the court and retired to deliberate.
After deliberation they returned into court, and through their foreman
informed the court that they could not agree upon a verdict in this
case.
80 Whereupon, in conformity with act No. 23, of the session of the
legislature of the year 1871, the court took this case under ad-
visement and ordered that, counsel furnish briefs within ten days.
- Act No. 23.
Filed March 18th, 1871.
J. D. TAYLOR, D’y Clerk.
An act to regulate the mode of trying cases arising under the provis-
ions of article thirteen (13) of the constitution of Louisiana, or under
any acts of the legislature to enforce the said article thirteen of the
said constitution, and to regulate the licenses therein mentioned.
SECTION I. Be it enacted by the senate and house of representatives of
the State of Louisiana in general assembly convened, That all cases brought
for the purpose of vindicating, asserting, or maintaining the rights,
81 privileges, and immunities guaranteed to all persons under the pro-
visions of the article thirteen of the constitution of Louisiana, or.
under the provisions of any acts of the legislature to enforce the said ar-
ticle thirteen, and to regulate the licenses therein mentioned, or for the
purpose of recovering damages for the violation of said rights, ‘privileges,
and immunities, shall be tried by the court, or by a jury if any party to
the suit prays for a trial by jury.
SECTION II. Be it further enacted, &c., That if the jury do not agree
or fail to render a verdict, either for the plaintiff or defendant, the jury
shall be discharged, and the case shall be immediately submitted to the
judge upon the pleadings and evidence already on file, as if the case
~ had. been originally tried without the intervention of a jury;
82 and it shall be the duty of the judge to decide the case at once,
without any further proceedings, arguments, countenance, or de-
= . Dae eS ee ee a eee >
Pee Ee POON RMS ES Biss ey ae Sie he
: ‘
26 JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET.
lay; each party having the right to appeal to the supreme court in all
cases where an appeal is allowed by law.
SECTION III. Be it further enacted, And that this act shall take effect
from and after its passage.
(Signed) G. W. CARTER,
Speaker of the House of Representatives.
(Signed) OSCAR J. DUNN,
Tieutenant Gov. and President of the Senate.
Approved February 27th, 1871.
(Signed) H. C. WARMOTH,
Governor of the ria of Louisiana.
OFFICE OF SECRETARY oF STATE,
STATE OF LOUISIANA,
New Orleans, March 16th, 1871.
This is to certify that the above and foregoing is a true and
83 exact copy from the original act on file in this office, and the in-
terlineation in the 2nd line of the 1st section, between the words
‘‘ representatives” and “in,” was made before signing this.
Given under my hand and the seal of State this 16th day of March,
1871.
GEO. E. BOVEH,
Sec’y of State.
Bill of exceptions, No. 1, for defendant. —A. Attocha and Hornor & Bene-
dict, att’ys.
Filed April 4th, 1871.
| J. D. TAYLOR, D’y Clerk.
Eighth district court.
©. S. SAUVINET
vs. No. 399.
J. A. WALKER.
Be it remembered ‘that, on the trial of this case, in open court, on
Thursday, the 16th day of "March, 1871, the counsel for defendant made
a challenge to the array ‘of the jury for the reasons fully ex-
$4 hibited and set forth in paper marked “ Challenge No. 1,” here-
inbefore filed, and submitted the same upon ‘the testimony al-
ready taken thereupon and in the record.
Whereupon the court overruled said challenge as being unfounded in
law, after hearing evidence and argument, and proceeded to empanel
the jury.
But the court overruled these objections and ordered the evidence to
be received, when the counsel for defendant excepted to the said ruling
of the court and tendered this bill of exceptions, praying the court to
sign the same and make it a part of the record in this case.
(S’g’d) HENRY C. DIBBLE, Judge.
Bill of exceptions, No. 2, for defendant.—A. A. Attocha and Hornor and
Benedict, att’ys.
Filed April 4th, 1871. | Bit
85 J. D. TAYLOR, D’y Clerk.
’
.. > Sain.
JOSEPH A. WALKER VS. CHARLES S. SAUVINET. 27
Eighth district court, parish of Orleans.
C. S. SAUVINET
U8. No. 399.
J. A. WALKER.
Be it remembered that, on the trial of this case, in open court, on
Thursday, the 16th day of March, 1871, the names of the jurors having
been called, and including one Louis Kenzel, having been placed in the
box and been drawn out by the clerk, and a list formed as required by
arts. 496 et seq. of the Code of Practice, when said Louis Kenzel was
called to the book and presented as a juror to the pl’ff. Whereupon
said Kenzel asked to be excused from service as a juror, on the ground
that he was exempt as a fireman. To which the counsel of the defend-
ant objected on the grounds following:
86 First. That the application to be excused came too late, and
“oe should have been made before the name of the juror was put into
the box.
But the court overruled these objections, and ordered the evidence to
be received, when the counsel for defendant excepted to the said ruling
of the court, and tendered this bill of exceptions, praying the court to
sign the same and make it a part of the record in this case, after due
exhibition to counsel for plaintiff. 3, 16-71.
(S’g’d) HENRY C. DIBBLE, —
EK. FILLEUL.
Bill of —— No. 3, for defendant.—A. A. Attocha and Hornor and
Benedict, atty’s.
Filed April 4th, 1871.
J. D. TAYLOR, D’y Clerk.
Eighth district court, parish of Orleans.
C. S. SAUVINET ) | 7
V8. No. 399. A
J. A. WALKER.
87 Be it remembered that, on the trial of this case, in open court,
on Thursday, the 16th day of March, 1871, the juror, Joseph Pi.
jeux, having been presented, and it appearing ‘that said juror was 2
colored man, counsel for defendant challenged said juror for cause, on
the ground that he was interested and prejudiced in this case on ac-
count of his color.
But the court overruled these objections, and ordered the juror to be
received, when the counsel for defendant excepted to the said ruling of
the court, and tendered this bill of exceptions, praying the court to
sign the same and make it a part of the record in this case, after due
exhibition to counsel for plaintiff.
(S’g’d) HENRY C. DIBBLE, Judge.
$8, 16-71.
No objection.
EK. FILLEUL.
28 JOSEPH A. WALKER VS. CHARLES 8. SAUVINET.
88 Bill of exceptions, No. 5, for defendant.—A. A. Attocha and Hor:
nor and Benedict, att’ys.
Filed April 4th, 1871.
| J. D. TAYLOR, D’y Clerk.
Eighth district court, parish of Orleans.
C. S. SAUVINET
V8. No. 399.
J. A. WALKER.
Be it rerhembered that, on the trial of this case, in open court, on
Thursday, the 16th day of March, 1871, the juror, Edward Vorster, hav-
ing been presented to and accepted by both parties, refused to be sworn —
as a juror, and stated that he was an atheist, that he neither believed
in any Supreme Being, or in a state of future rewards and punishments
when counsel for defendant objected to him as a juror, on the ground
that he was incompetent, for the reasons as above stated by said
89 juror. But the court overruled the objection, and ordered the
clerk to administer the usual affirmation, omitting the words * So
help me God,” which was accordingly done, and the juror took his seat
in the jury-box, when the counsel for defendant excepted to the said
ruling of the court, and tendered this bill of exceptions, praying the
court to sign the same and make it a part of the record in this case,
after due exh | to counsel for plaintiff.
3, 16-71. HENRY C. DIBBLE, Judge.
No objection.
EK. FILLEUL.
Bill of exceptions, No. 6, for defendant.—A. A. Attocha and Hornor and
Benedict, att’ys.
Filed April 4th, 1871.
J. D. TAYLOR, D’y Clerk.
Kighth district court, parish of Orleans.
©. S. SAUVINET
VS. No. $99.
J. A. WALKER.
90 Be it remembered that, on the trial of this case, in open court,
on Thursday, the 16th day of March, 1871, the counsel for plain-
tiff offered to prove, by C.S. Sauvinet, the plaintiff, then on the witness
stand, a conversation which took place some days previous to the oc-
currence complained of in pl’ff’s petition, to which the counsel of de-
fendant objected, on the grounds following:
First. That the same was irrelevant, and notin any manner con-
nected with the subject-matter of this suit.
Second. That there were no proper allegations in the pl’fi’s petition
to warrant the introduction of such testimony.
But the court overruled these objections, and ordered the evidence to
be received, when the counsel for the defendant excepted to the
91 said ruling of the court, and tendered this bill of exceptions,
praying the court to sign the same and make ita part of the
record in this case, after due exhibition to plaintiff’s counsel.
, 3, 16-71. HENRY C. DIBBLE, Judge.
No objection.
FILLEUL.
valle Siete 1 i ait RUNES ai A ar alae ign ea
JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET. 29
Bill of exceptions, No. 7, for def’t.—A. A. Attocha and Hornor and Bene-
dict, att’ys.
Filed April 4th, 1871.
| J. D. TAYLOR, D’y Clerk.
Kighth district court, parish of Orleans.
C. S. SAUVINET
V8. No. 399.
J. A. WALKER.
Be it remembered that, on the trial of this case, in-open court, on
Thursday, the 16th day of March, 1871, the counsel for plafntiff offered
in evidence a blank city license, and offered to prove by the pl’ff, then
a witness on the stand, that it was such a license as all coffee-
92 house keepers in the city were obliged to have; to which the
counsel for defendant objected, on the grounds following:
First. That it was irrelevant, the question not being before the court
as to all coffee-houses, but only to that of def’t, and therefore—
Second. That it was not the best evidence.
But the court overruled the objections, and ordered the evidence
to be received; when the counsel for defendant excepted to the said
ruling of the court, and tendered this bill of exceptions, praying the
court to sign the same and make it a part of the record in this case,
after due exhibition to plaintifi’s counsel.
3, 16-71. “HENRY C. DIBBLE, Judge.
EK. FILLEUL, Atéy.
93 Bill of exceptions, No. 8, for def’t.—A. A. Attocha and Hornor and
Benedict, att’ys. :
Filed April 4th, 1871.
| J. D. TAYLOR,
Dy Clerk.
Eighth district court, parish of Orleans.
©. S. SAUVINET
V8. ts o. 399.
J. A. WALKER.
Be it remembered that, on the tria! of this case, in open court, on
Friday, the 17th day of March, 1871, the court, in its charge to the jury,
instructed them * that they were the judges whether laws are to apply
to facts, and had no power to determine what the law is;” and further,
that Act No. 38, of 1869, was constitutional and binding; to which the
counsel of defendant objected on the grounds following :
First. That said charges were incorrect and illegal.
Second. That the constitutionality of said act was a fact
94 directly put at issue before the jury, which was for them to deter-
mine.
Third. That the court should have charged the jury that they were
absolutely judges of the law, as well as of the fact.
But the court overruled these objections, when the counsel for defend-
.
30 JOSEPH A. WALKER V8. CHARLES 8. SAUVINET.
ant excepted to the said ruling of the court, and tendered this bill of
exceptions, praying the court to sign the same and make ita part of the
record in this case, after due exhibition to counsel for plaintiff.
3, 20-71.
HENRY C. DIBBLE, Judge.
E. FILLEUL, Att'y.
Bill of exceptions, No. 9, for def’t.—A. A. Attochaand Hornor and Bene-
3 dict, att’ys.
Filed April 4th, 1871.
J. D. TAYLOR,
Dy Clerk.
95 Eighth district court, parish of Orleans.
C. S. SAUVINET
8. No. 399.
J. A. WALKER.
Be it remembered, that on the trial of this case in open court, on
Friday, the 17th day of March, 1871, the counsel for defendant asked
the court to charge the jury that “ under the allegations of the petition.
the jury must find that plaintiff is a man of color or he cannot recover ;”
which charge the court declined to give, on the grounds following :
First. That it was a sataaceaash of fact, and should be left to the jury,
without instructions.
When the counsel for defendant excepted to the said ruling of the
court, and tendered this bill of exceptions, praying the court to sign
the same and make it a part of the record in this case, after due exhibi-
tion to counsel for plaintiff..
3, 20-71.
E. FILLEUL, Af?tys.
96 | Reasons for judgment.
Filed April 27th, 1871.
HENRY ©. DIBBLE, Judge.
J. D. TAYLOR,
Dy Clerk.
Kighth district court.
C. S. SAUVINET
U8. No. 399.
Jd. A. WALKER.
This suit for damages was instituted by the plaintiff for the purpose
of vindicating his civil rights guaranteed by Article 13 of the consti-
tution, and sanctioned by the law approved February 23rd, 1869, enti-
tled “An act to enforce the thirteenth articlé of the constitution of
this 7 and to regulate the licenses mentioned in said thirteenth
article.
The defendant in his answer prayed for a trial by jury.
A special jury was empaneled, and on the seventeenth of March,
1871, the case was submitted to them. They failed to agree and were
: discharged.
JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 31
97 Thereupon the plaintiff’s counsel moved that the court should
at once proceed to decide the case in compliance with section
two of an act approved February 27th, 1871, entitled “An act to regu-
late the mode of trying cases arising ‘under the provisions of article
thirteen of the constitution of Louisiana, or under any acts of the leg-
islature, to enforce the said article thirteen of the constitution, and to
regulate the licenses therein mentioned.”
To this motion the defendant’s counsel objected, saying that the law
is unconstitutional.
The fact of the mistrial was ordered to be entered upon the miuutes.
The case was taken under advisement, and time was gtanted for the
attorneys to file briefs upon the question of the validity of the last-
named act.
That act provides that all cases brought for the purpose of vin-
98 dicating, asserting, or maintaining the rights, privileges, and im-
munities guaranteed to all persons under the provisions of the
article thirteen, or of acts to enforce the same, shall be tried by the
court, or a jury, if any party to the suit prays for a jury trial. It then
provides that the court shall determine the cause in case of mistrial, as
aforesaid.
Several objections are urged to the vakdity of this statute, which
must now be passed upon:
1st. It is insisted that its provisions should have no application to
this case, because it was not promulgated until the seventeenth of
March, the day after the trial commenced ; that quo ad this suit it is
retroactive and violates Article 110 of the constitution.
But the law was approved February 27th, and was to take effect from
its passage
It was a law on that date, though not promulgated.
99 2 An., 68; 13 An., 502; 14 An., 486.
It was, therefore, not retroactive as regards this case, for when
the _ occurred the statute was in full force. It relates alone to the
tria
2. It is urged that at the time the present constitution was framed
the right of trial by jury in such cases was not denied, and that such
right is, therefore, expressly reserved by the terms of article fourteen,
which declares that *“ the rights enumerated in this title shall not be
coustrued to limit or abridge other rights of the people not herein
expressed.”
If it were a fact that a constitutional right of trial by jury in civil
cases existed at the time of the adoption of the constitution of 1868, it
would be necessary to examine the scope of this article foyrteen of the
bill of rights; but’ such is not the case. It has been settied by
100 numerous decisions that the right of jury trial in civil cases,
guaranteed by the seventh amendment to the Constitution of the
United States, only has reference to proceedings in the Federal courts,
and has no application to the State tribunals; 5 M., 436. Indeed, it is
not now urged that the law violates the Constitution of the United
States in that respect.
The several constitutions of Louisiana have guaranteed theright of jury
trial in criminal prosecutions, but have lett to the legislature the power
of determining in what civil cases such trials shall be had. 1 An., 418;
3 An., 197; 3 R., 123. The whole judicial frame-work is based upon
such denial, for the Supreme Court is empowered to review questions
of fact which have been decided by juries, contrary to the commeon-
law doctrine. The present constitution expressly denies the right of
82 § JOSEPH A. WALKER VS. CHARLES 8. SAUVINET.
101 jury trial in all cases which may come before the parish court,
article eighty-seven. Therefore, as the right of jury trial in such a
case as this, prior to the adoption of the constitution, depended upon legis-
lative will, it does not seem that article fourteen is violated.
3, Counsel insist that the first section of this statute guarantees the
right of jury trial; that there has been no trial, but a mistrial, and
therefore the second section, directing the court to decide the case
when the jury does not agree, is destroyed. The several provisions of
statutes are construed together.
4. And finally it is said that this act is mischievous in its tendency,
and subversive of the republican form of government. If the law is not
unconstitutional the courts have nothing to do with its tendency; it —
may be a good or a bad law; the judges who administer it are not
responsible.
102. The act does not violate any provision of the Constitution of
the United States, or of our own State. Itis true that it is an
infringement of the right of a person who has been sued to have his
case determined by his peers, but it does not seem at all clear that any
wrong has been committed. The ultimate power, in this State, of de-
ciding all questions of fact and law in civil cases, is not with the jury,
but with the judges. Litigation must not continue forever. The law was
evidently formed for the purpose of ending these suits-which could not
otherwise be concluded.
Juries could not be obtained who would agree one way or the other.
Therefore, there seems to be considerable strength in the argument
of plaintiff’s counsel, who argues that the legislature was bound to pass
some such law to meet the exigency.
103 Article ten of the constitution declares that the courts shall
remain open, and every person, for injury done him, &c., shall
have adequate remedy by due process of law, and justice administered
without denial or unreasonable delay.
The remedies which existed before this act was passed only afforded
to the person who sought to maintain the rights guaranteed to him by
article thirteen the prospect of an interminable suit; afforded means to
plaintiff and defendant of preventing the cause from going before the
judges who have the final authority to decide. Such remedies did not
meet the requirements of the bill of rights. They were not adequate,
did not afford the means for the administration of justice without un-
reasonable delay. I proceed, then, to consider the case upon its
104 merits. Article thirteen of the constitution is as follows:
‘¢‘All persons shall enjoy equal rights and privileges upon any
conveyance of a public character ; and all places of business or of public
resort, or for which a license is required by either State, parish, or mu-
nicipal authority, shall be deemed places of a public character, and
shall be opened to the accommodation and patronage of all persons,
without distinction or discrimination on account of race or color.”
The statute of 1869, aforesaid, which was passed for the purpose of
enforcing this article, provides that common carriers shall have the
right to refuse to admit persons who are of infamous character, or who
may be guilty of vulgar or disorderly conduct, or ‘of acts tending to in-
jure the business of such carrier, provided that the rules and reg-
105 ulations of such carriers shall not exclude any one on account
of race or color. Otherwise, common carriers are forbidden to
expel any one from, or refuse to admit any one to, their conveyance.
The same rule is applied to public inns, hotels, and all places of public
resort. The law further provides that all licenses granted by State,
5 ee PU IO a GD ay CL a Ret Set NG RSNA NRE A tis hls Si i Ni RRA atte Se eneneneemen *
JOSEPH A. WALKER VS. CHARLES S. SAUVINET. 33
parish, or municipal authority to persons engaged in the business of
keepin g places of public resort shall contain an express condition that
the place of business or public resort shall be open to the accommoda-
tion of all persons, without distinction or discrimination on account of
race or color. Any violation of these conditions renders the license
liable to forfeiture, and the person aggrieved is authorized to sue for
damages exemplary as well as actual.
The plaintiff, who is the sheriff of this parish, alleges that the
106 defendant, who keeps a coffee-house on Royal street, refused to
supply him with refreshments because lie is a colored man; that
he, defendant, offered this indignity to him for no other reason.
He therefore claims exemplary damages in the sum of ten thousand
dollars. ,
Another person was joined as defendant with Walker, but the suit
was discontinued as to him.
The petition also prayed for the forfeiture of defendant’s tice: but
that demand was abandoned on trial. The answer is a general denial.
The evidence taken before the jury would. hardly have been offered
to the court liad there been no jury. The arguments were effectively
made to men disposed to disagree, and were certainly not intended for
the court.
2 Fi The facts proved are these: The plaintiff is reputed to be, and ~
107 ~=is, acolored man. He entered the coftee-house of defendant in.
| company with two other men, white men, and was refused a drink *
because he is reputed to be, and is, a colored man. While disputing the
facts before the jury, the defendant’s counsel argued that the article
thirteen and the statute of 1869 aforesaid shuuld be held void, as con-
oe travening the fourth and ninth amendments to the Constitution of the
\ United States. In the charge to the jury they were instructed that it
| was not their province to declare constitutions and laws null, and they
were charged that there is no conflict between the provisions of the
National Constitution and our own. ‘This charge was correct. The
fourth amendment to the Constitution, declaring the right of the people
4 to be secure in their persons, houses, papers, and effects against
108 unreasonable searches and seizures, was intended to prevent domi-
ciliary visits and arbitrary arrests upon general warrants. (Story,
sec. 1902.) The fourteenth amendment, declaring that the enumeration
in the Constitution of certain rights shall not be construed to deny or
disparage others retained by the people, rightly declares a rule of con-
struction. (Story, section 1905.) The thirteenth article of the consti-
| tution of Louisiana, and the act to enforce the same, in no way conflict
| | with these provisions of the Constitution of the nation. They are in
% ! full consonance, however, with th® thirteenth, fourteenth, and fifteenth
| amendments to the pational Constitution, abolishin g slavery and extend-
ing to men of African descent, whether they have been slaves or not,
the rights of citizenship in the republic, and in the States in which
i : they reside.
ty | I do not desire to discuss, and it is not my duty to consider,
109 the wisdom of the constitutional and statutory provisions under
1 “p: which the plaintiff brought this action. It is enongh that I have
sworn to obey them. Every citizen has the right to ask from courts *
that he be protected in the immunities and privileges guaranteed by |
the Constitution.
In this case, the plaintiff shows an infringement of such civil rights.
His citizenship has been degraded. He should have exemplary dam-
ages. Such an amount should be estimated as would sanctify the princi-
REc. 350—3
‘
34 JOSEPH A. WALKER VS. CHARLES &. SAUVINET.
ple involved, and deter others from inflicting the same injury. I think
that one thousand will be sufficient.
It is, therefore, ordered, adjudged, and decreed that the plaintiff, C.
S. Sauvinet, do have and recover from the defendant, J. A. Walker, the
sum and amount of one thousand dollars as exemplary damages, and all
costs of suit.
110 Judgment.
In this case, submitted to the court for determination, after delibera-
tion, and for the reasons assigned in the written opinion this day deliv-
ered and filed, the court considering the law and the evidence to be in
favor of the plaintiff ;
It is ordered, adjudged, and decreed that the plaintiff, C. S. Sauvinet,
do have and recover from the defendant, J. A. Walker, the sum and
amount of one thousand dollars as exemplary damages, and all costs of
suit.
Four (4) words erased approved before signing.
Judgment rendered April 27th, 1871.
May Sth, 1871. 7
(Signed) HENRY C. DIBBLE, Judge.
Rule for new trial.
Filed May Ist, 1871.
J. D. TAYLOR,
Dy Clerk.
111 Eighth district court.
C. S. SAUVINET )
vs. No. 399.
J. A. WALKER. \
On motion of Hornor and Benedict and A. A. Attocha, of counsel for
defendant, it is ordered that the plaintiff show cause on the 17th day of
May, 1871, at 10 o’clock a. m., why a new trial should not be granted in
this case on the exceptions taken at the trial and of the record, and on
the following grounds:
ist. That the act under which this action is brought is null and. void
by reason of its being violative of the Constitution of the United States,
and of the State of. Louisiana.
2nd. That the plaintiff failed to ngake out his case, in not proving
that he was a colored man; that he had been refused entertainment
because he was a colored man, or that. he suffered any actual dam-
age,
112 “3rd. That the judge erred in not taking upon himself to decide
the case after the jury had failed to render a verdict, the act of
, 1871, under which he undertakes to do so, being contra-
dictory and inoperative, and not reconcilable with itself, or the laws in
reference to a trial by jury.
4th. That the defendant was entitled to a rehearing before a jury.
5th. That this cause is one arising under a penal statute, which cre-
ates an offence and provides a punishment, and, therefore, under the
constitution of the State, the defendant has a right of trial by jury, of
which he cannot be deprived by act ef the legislature.
H
i
1
f
if
JOSEPH A. WALKER VS. CHARLES § SAUVINET. 35
6th. That by the fourteenth amendment of the Constitution of the
United States certain inalienable rights are guaranteed to the de-
113 = fendant which the laws of the State cannot deprive him of, among
which is the trial by jury.
tth. That the judgment of the judge is contrary to law and
evidence.
Sth. That the damages awarded are excessive, and in all dispropor-
tion to the circumstances of the case or the condition of the defend-
ant.
Rule for new trial.
Filed May 3rd, 1871. ) :
ROBERT LYNNE,
Dy Clerk.
State of Louisiana, eighth district court for the parish of Orleans.
MonDaAY, the 1st day of May, 1871.
Present: The Honorable Henry C. Dibble, judge.
C. S. SAUVINET
U8. No. 399.
J. A. WALKER.
On motion of Hornor and Benedict, and A. A. Attocha, of counsel for
defendant, it is ordered that the plaintiff show cause on the 7th
114 day of May, 1871, at 10 a. m., why a new trial should not be
granted in this case on the exceptions taken at the trial and of
record, and on the grounds herein filed in this office.
A true extract from the minutes. é
J. D. TAYLOR,
Dy Clerk,
Sheriff’s return.
teceived May Ist, 1871, at 7 o’clock p. m., and service accepted.
(Signed) 7 F. M. SICARD,
Dy Sheriff.
Rule discharged.— Minutes, May 8th, 1871.
.
tighth district court.
C..S. SAUVINET
vs. (So. 399.
J. A. WALKER.
The rule for a new trial in this case came on. Present. Hornor and
Benedict for pl’ff in rule; E. Filleul for pl'ff in suit and def’t in rule.
After hearing pleadings, evidence, and counsel, the court con-
115 sidering the law and the evidence to be in favor of def’t in rule,
it is ordered that said rule be discharged and a new trial re-
fused.
ATR iN tt sp NLS ERE i A Raa CN act” Nc PM TRE CR Rt Bae ten STO
oS | |
36 JOSEPH A. WALKER VS CHARLES &. SAUVINET.
: , Motion and order of appeal.
Filed May 17th, 1871.
J. D. TAYLOR,
Dy Clerk.
Eighth district court.
C. S. SAUVINET
US. No. 39%.
J. A. WALKER.
On motion of Hornor and Benedict, and A. A..Attocha, att’ys of de-
fendant, and on suggesting to the court that defendant is informed and
believes that there is error to his prejudice in the final judgment of the
court herein rendered, and that he desires to take a suspensive appeal
therefrom,
It is ordered by the court, that defendant be allowed asuspensive ap-
| peal, herein, returnable to the supreme court of Louisiana on the
116 ‘first Monday of November, 1$71, upon his giving bond with good
and solvent security in the sum of eighteen hundred dollars, con-
ditioned as the law directs.
Bond of appeal.
Filed May 17th, 1571.
J. D. TAYLOR,
Dy Cler?.
Eighth Cistrict court. ) oo
390.
C. S. — * xo,
J. A. Waraee. \
Know all men by these presents, that we, Joseph A. Walker, as princi-
pal, and Charles Cavanac, W’m B. Schmidt, W’m Solomon, Hugh Mc-
Closkey, and Jno. H. Rareshide, in solido as sureties, are held and firmly
bound unto Thomas Lynne, clerk of the eighth district court for the
parish of Orleans, his successors, executors, administrators, and assigns,
in the sum of eighteen hundred dollars; for the payment whereof, ©
117 we bind ourselv es, our heirs, executors, and administrators,
firmly by these presents, sealed with our seal and dated in the Ҥ
city of New Orleans, on the16th day of May, in the year of our Lord
one thousand eight hundred and seventy-one. a
Whereas the above-mentioned Joseph A. Walker has on this day ‘
filed a motion of appeal from a final judgment rendered against him in
the suit of C. S. Sauvinet vs. J. A. Walker et als., No. 399, in the
eighth district court for the parish of Orleans, on the 27th day of April,
1871, and signed on the Sth day of May, 1871: f
Now, the condition of the above obligation is such, that the above © |
bound Joseph A. Walker shall prosecute his appeal, and shall satisfy
whatever judgment may be rendered against him, or that the
118 same shall be satisfied by the proceeds of the sale of his estate,
te a " z, _ _ " p z
JOSEPH A. WALKER VS. CHARLES 8. SAUVINET.. 37
real or personal, if he be cast in the appeal; otherwise, that the
said sureties shall be liable in his place.
J. A. WALKER, [SEAL. |
CHARLES CAVANAGC, [SEAL.|
W. B. SCHMIDT.
WM SOLOMON.
HUGH McCLOSKEY.
J. H. RARESHIDE.
Signed, sealed, and delivered in the presence of—
Clerk’s certificate.
I, Thomas Lynne, clerk of the eighth district court for the parish of
Orleans, and as such duly commissioned and sworn, do hereby certify
that the foregoing one hundred and twenty-five pages contain a true
and correct transcript of all the proceedings had, all the docu-
119 + ments filed, as well as all the testimony and evidence adduced
upon the trial of the cause wherein C. S. Sauvinet is plaintiff
and J. A. Walker and F. Landfried are defendants, the same being
numbered three hundred and ninety-nine on the docket of the eighth
district court for the parish of Orleans.
In testimony whereof I have hereunto set my hand and affixed the
impress of the seal of the said court in the city of New Orleans, this
thirty-first day of August, in the year of our Lord one thousand eight
hundred and seventy-one, and the ninety-sixth year of the Independ-
ence of the United States.
[SEAL.| (Signed) THOMAS LYNNE, Clerk.
120 Supreme court of the State of Louisiana.
Answer to appeal.— Filed Nov. 6, 1871: |
State of Louisiana, supreme court.
C. 8S. ongihiene :
vs. No. 39513.
J. A. WALKER. \
The appellee, answering this appeal, thinks that he has sustained wrong
by the judgment of the district court, in this, to wit, that the dam-
ages allowed him are insufficient and inadequate.
That the whole amount of the damages claimed by him, to wit, ten
thousand dollars, should have been allowed.
He therefore prays that the judgment of the district court be amend-
ed, and that ten thousand dollars be allowed him.
121 © <Andappellee also prays for general relief. :
(Signed) E. FILLEUL,
Of Counsel.
Order to place on summary docket.—Filed Nov. 6th, 1871.
In the supreme court.
*
C. S. SAUVINET
vs. No. 3513.
J. A. .WALKER.
This case arising under the legislation for enforeing the constitutional
BESANT RBS ih inca TER Ai cape ge BR HiRes ne
ae eee"
*.
36 JOSEPH A. WALKER VS CHARLES &. SAUVINET.
Motion and order of appeal.
Filed May 17th, 1871.
| J. D. TAYLOR,
D’y Clerk.
Eighth district court.
C. S. SAUVINET
vs. ° No. 392%.
J. A. WALKER.
On motion of Hornor and Benedict, and A. A..Attocha, att’ys of de-
fendant, and on suggesting to the court that defendant is informed and
believes that there is error to his prejudice in the final judgment of the
court herein rendered, and that he desires to take a suspensive appeal
therefrom,
It is ordered by the court, that defendant be allowed asuspensive ap-
peal, herein, returnable to the supreme court of Louisiana on the
116 first Monday of November, 1$71, upon his giving bond with good
and solvent security in the sum of eighteen hundred dollars, con-
ditioned as the law directs.
Bond of appeal.
Filed May 17th, 1871.
J. D. TAYLOR,
Dy Cler?.
Eighth istrict court.
C. 5S. en * x6,
J. A. fey \
Know all men by these presents, that we, Joseph A. Walker, as princi-
pal, and Charles Cavanac, W’m B. Schmidt, W’m Solomon, Hugh Mc-
Closkey, and Jno. H. Rareshide, in solido as sureties, are held and firmly
bound unto Thomas Lynne, clerk of the eighth district court for the
parish of Orleans, his successors, executors, administrators, and assigns,
in the sum of eighteen hundred dollars; for the payment whereof,
117. ~we bind ourselves, our heirs, executors, and administrators,
firmly by these presents, sealed with our seal and dated in the
city of New Orleans, on the16th day of May, in the year of our Lord
one thousand eight hundred and seventy-one.
Whereas the above-mentioned Joseph A. Walker has on this day
filed a motion of appeal from a final judgment rendered against him in
the suit of C. S. Sauvinet vs. J. A. Walker et als., No. 399, in the
eighth district court for the parish of. Orleans, on the 27th day of April,
1871, and signed on the 8th day of May, 1871:
Now, the condition of the above obligation is such, that the above
bound Joseph A. Walker shall prosecute his appeal, and shall satisfy
whatever judgment may be rendered against him, or that the
118 same shall be satisfied by the proceeds of the sale of his estate,
JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. . 37
real or personal, if he be cast in the appeal; otherwise, that the
said sureties shall be liable in his place.
J. A. WALKER, [SEAL. |
CHARLES CAVANAGC, |SEAL.|
W. B. SCHMIDT.
WM SOLOMON.
HUGH McCLOSKEY.
J. H. RARESHIDE.
Signed, sealed, and delivered in the presence of—
Clerk’s certificate.
I, Thomas Lynne, clerk of the eighth district court for the parish of
Orleans, and as such duly commissioned and sworn, do hereby certify
that the foregoing one hundred and twenty-five pages contain a true
and correct transcript of all the proceedings had, all the docu-
119 ments filed, as well as all the testimony and evidence adduced
upon the trial of the cause wherein C. S. Sauvinet is plaintiff
and J. A. Walker and F. Landfried are defendants, the same being
numbered three hundred and ninety-nine on the docket of the eighth
district court for the parish of Orleans.
In testimony whereof I have hereunto set my hand and affixed the
impress of the seal of the said court in the city of New Orleans, this
thirty-first day of August, in the year of our Lord one thousand eight
hundred and seventy-one, and the ninety-sixth year of the Independ-
ence of the United States.
[SEAL.] (Signed) THOMAS LYNNE, Clerk.
120 Supreme court of the State of Louisiana.
Answer to appeal.— Filed Nov. 6, 1871: _
State of Louisiana, supreme court.
C. S. SAUVINET )
Us. No.
J. A. WALKER. \
The appellee, answering this appeal, thinks that he has sustained wrong
by the judgment of the district court, in this, to wit, that the dam-
ages allowed him are insufficient and inadequate.
- That the whole amount of the damages claimed by him, to wit, ten
thousand dollars, should have been allowed.
He therefore prays that the judgment of the district court be amend-
ed, and that ten thousand dollars be allowed him.
121 And appellee also prays for general relief.
(Signed) E. FILLEUL,
Of Counsel.
3513.
Order to place on summary docket.—Filed Nov. 6th, 1871.
In the supreme court.
C. S. SAUVINET ;
v8. No. 3513.
J. A. .WALKER.
This case arising under the legislation for enforeing the constitutional
38 JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET.
privileges of art.13 of the constitution of Louisiana, is entitled to
be placed on the preference docket.
(Signed) EK. FILLEUL,
Att’y for C. 8S. Sauvinet.
Case submitted.—Evtract from the minutes. ou re
WEDNESDAY, December 6th, 1871.
The court was duly opened. Present their honors John T.
122 =Ludeling, chief justice, and James G. Taliaferro, Rufus K. How- ?
ell, W. G. Wyly, William W. Howe, associate justices.
C. S. SAUVINET d
U8. No. 3513.
J. A. WALKER ET ALS. >
This case was called for trial, and having listened ‘to argument from
E. Filleul, esq., of counsel for the plaintiff & appellee, and Joseph P.
Hornor, esq. . of counsel for the defendant, appellant herein, the court
took the same under advisement upon the brief for appellee and the
papers now on file, and the brief to be filed on behalf of appellant by
counsel within ten days from this date.
Opinion.
Filed March 11, 1872.
(Signed) M. P. JULIAN,
Dep’y Clerk.
123 Supreme court.
C. S. SAUVINET )
VS. No. 3013.
J. A. ee
Appeal from the eighth district court for the parish of Orleans.
Mr. Justice TALIAFERRO:
This is an action brought under the 4th section of the act of the
legislature, approved 24th of February, 1869, entitled “An act to pro-
vide for carrying into effect the one hundred and thir ty-second article of
the constitution of the State.”
The plaintiff alleges that on the 20th of January, 1871, in company
with two of his friends, he called at the coffee-house of the defendant,
and asked of the person in attendance to be furnished with refresh-
ments, kept and sold there by the defendant, a duly licensed coffee- i 2
house keeper. That he offered to pay the usual and customary 3
124 price of such refreshments, and conducted himself in an orderly |
and respectful manner. That notwithstanding, the accommoda- Pee
tions asked for were refused, and that he was ordered to leave the ‘or.
house. That this refusal and ill-treatment arose from no other cause or
reason than that the petitioner is a man of color, and on that account
not to be furnished with the accommodations extended in that estab-
lishment to others. The plaintiff avers that from the indignity so
wantonly offered to him his feelings have’ been greatly outraged, and
JOSEPH A. WALKER VS. CHARLES &. SAUVINET. 39
for this illegal and unwarranted act of the defendant the plaintiff prays
damages in the sum of ten thousand dollars.
The answer is a general denial. The case was tried before a jury, but
there wasadisagreementand no verdict rendered. Thecourt there-
125 upon, under the provisions of act No. 23 of the statutes of 1871,
rendered a judgment for one thousand dollars in favor of the
plaintiff, and the defendant appealed. There are numerous bills of ex-
ceptions found in the record, but their examination is not important in
determining this case. Six of them relate to the formation of and the
judge’s charge to the jury; the other two relate to the admission of tes-
timony, and : are not important.
There was no evidence introduced on the part of the defendant.
All the material allegations of the plaintiff we consider are fully es-
tablished. The plaintiff is shewn to be a man of character and respect-
ability: that he has frequently held public office, and that he is now,
and was at the time he was refused refreshments in the defendant’s
126 _—coffee-house or saloon, civil sheriff of the parish of Orleans. It
is clear that the refusal of the accommodations asked for was
made solely on the ground that the plaintiff is a manof color. The de-
fendant has, therefore, incured the penalty of the act of 1869. We
think the judgment of the lower court correct.
Itis therefore ordered, adjudged, and decreed that the judgment of
the district court be affirmed, with costs.
vs.
WALKER.
SAUVINET
WYLY, J., dissenting: |
I think the plaintiff had the right to be served at the bar-room of the
defendant; but I do not think the refusal ought to entitle him, a colored
man, to greater damages than a white man ought to recover; it being
no greater wrong to refuse a colored man than a white man.
127 The question of color has nothing to do with the case; nor is
: tLe position of the plaintiff of any consequence.
A citizen of the State has been refused entertainment at a public re-
sort, and he claims exemplary damages under a statute highly penal in
its character.
_ The jury could not agree upon a verdict, and under a special statute
the district judge was authorized to dispose of the case. He imposed
on the defendant $1,000.00 exemplary damages, no actual damages
being shown.
I think the penalty wholly disproportionate to the offence.
If instead of refusing the plaintiff a drink merely, the defendant had
seized a chair and beaten him half to death with it, the damages would
_ probably not have exceeded $250.00; yet is the right to enjoy
128 the entertainment of a drinking-saloon of greater moment or
more sacred than the right of personal security from violence ?
Grave offenders are rarely condemned to pay a larger penalty than
$1,000.00, as the law is now administered; and yet, without any evidence
of the ability of thé defendant to pay the penalty, he is condemned to
pay one thousand dollars for merely refusing to sell a drink, not probably
worth twenty-five cents, and where no actual damage has resulted from
the refusal.
As the statute is highly penal, as there is no proof of the circumstances
_ of the defendant, and as the damages imposed by the district judge are
nla tat Uh MO i eee
— oe ‘
40 JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET.
- Im my ‘opinion unreasonable and oppressive, I believe justice requires
that this case should be remanded for new trial by a jury.
To vindicate Mr. Sauvinet’s civil rights it is not necessary to
despoil the defendant or to impose on him a greater penalty than
he can bear, the object of: the law being to correct the abuse, not to
bestow wealth upon the party injured or to destroy the offender.
For these reasons I deem it my duty to dissent in this case.
| PAUNIRET )
v8. Dissenting opinion.
WALKER. \
HOWE, J.:
The provision of the Constitution and the statute under which this
suit was brought should be enforced so long as they are the law of this
State. . We cannot treat them as dead-letters, and the plaintiff has, there
fore, a cause of action. But after hearing the dissenting opinion of
Mr. Justice Wyly, I am inclined to agree with him that the damages
are excessive.
130 | Decree. —LEutract from the minutes.
MONDAY, January 29th, 1872.
The court was duly opened pursuant to adjournment. Present, their
honors, John T. Ludeling, chief justice, and James G. Taliaferro, Rufus
K. Howell, W. G. Wyly, William W. Howe, associate justices.
His honor Justice Taliaferro pronounced the judgment and decree of
the court in the following cases:
C..S. SAUVINET
No. 3913.
v8.
J. A. WALKER ET AL.
On appeal from the 8th district court for the parish of Orleans. :
It is ordered, adjudged, and decreed that the judgment of the district
court be affirmed with costs.
131 (Mr. Justice Wyly, dissenting. read a Separate opinion herein.
His honor Justice Howe, concurring with Mr. Justice Wyly, filed a
dissenting opinion in this case.)
Petition for a rehearing.—Filed February 16, 1872.
Supreme court.
C. S. SAUVINET, APPELLEE, |
v8. ' & No. 3513.
JOSEPH A. WALKER, APPELLANT.
We most respectfully ask for a hearing in this case upon the follow-
ing grounds, viz:
1st. That your honors have failed to take any notice of our objections
to the unconstitutionality and illegality of act No. 23 of the statutes of
1871, under the provisions of which this case was decided by the lower
court, after the jury had disagreed. This point was urged with great
earnestness by us, both before the district judge and your honors
JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET. 41
132 and theformer occupied the larger part of his quite lengthy reasons
for judgment in disposing of it, and we trust that this court will
not leave it without passing upon it.
2d. That the decision of this court upon the amonnt of damages
to be inflicted upon the defendant as a punishment, is, in itself, a cer-
tain indication that such a law conferring upon a single judge unlimited
power to punish is contrary to the principles of a republican form of
government; and that the only safe measure of damages in such cases
is that assessed by a jury, which doctrine has always heretofore been
held by this court. See cases cited in our original brief.
In this connection we would also call attention to the fact that the
ease of Larrien vs. Dumonteil was submitted for decision wjth this case,
and remains undecided by your honors. The facts are precisely the
133 sameas in the case at bar, and the Jury in that case found a
verdict for the defendant.
3d. That the damages allowed by the decree are excesive. Upon this
point we can add nothing to the very strong arguments used by Mr.
Justice Wyly in his dissenting opinion.
Wherefore defendant and appellant prays that a rehearing may be
granted him.
Alt of which is respectfully submitted.
A. A. ATTOCHA,
HORNOR & BENEDICT,
| Of Counsel.
New Orleans, February 8th, 1872.
Opinion.—( Rehearing refused.)—-Filed March 11, 1872.
Supreme court.
C. S. SAUVINET
| vs. No. 3513.
J. A. WALKER.
134. Mr. Justice TALIAFERRO :
In the application for a rehearing in this case, the question as
to the constitutionality of the act of the legislature under which the
judgment against the defendant was rendered is pressed upon the con-
sideration of the court. We are not aware of the existence of any con-
stitutional provision-making it imperative upon the legislature to accord
a trial by jury in all civil cases. It was competent for the law-making
power to provide that cases like the one before us should be tried with-
out the intervention of a jury. Therefore it had the right to prescribe,
as it did in this class of cases, that issues of the sort here presented
should be tried by a jury if any party to the suit pray for a jury, and
to provide, in the event the jury do not agree, or fail to render a verdict
either for the plaintiff or defendant, that the case be determined
135 _—srby the judge.
No facts appear on therecord shewing that the damages awarded
are excessive.
The application for a rehearing is refused.
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- he ‘JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET.
Decree.—Extract from the minutes.
MONDAY, March 11, 1872.
The court was duly opened, pursuant to adjournment.
Present, their honors John T. Ludeling, chief justice, and James G.
Taliaferro, Rufus K. Howell, W. G. Wyly, William W. Howe, associate
justices.
His honor Judge Taliaferro pronounced the judgment and decree ot
the court in the following case. .
vs.
J. A. WALKER ET AL.
C. S. SAUVINET
» No.
The application for a rehearing is refused.
136 Petition for writ of error.—Filed March 1°, 1872.
Supreme court of Louisiana.
JOSEPH A. WALKER, PL’FF IN ERROR,
vs. No. 3513.
CHARLES S. SAUVINET, DEF’T IN ERROR.
To the hon. chief justice and associate justices of the supreme court of
Louisiana:
The petition of Joseph A. Walker, defendant in a cause wherein
Charles S. Sauvinet is plaintiff, with respect represents to your honors :
That he is aggrieved by the final judgment in the supreme court of
Louisiana, over which your honors preside, (said court being the high-
est of record in this State,) herein rendered against your petitioner and
in favor of said Charles 8S. Sauvinet ; that in said suit were drawn
in question, as appears on the face of the record thereof, certain
137 ~=—srights, privileges, and immunities claimed by petitioner under
the Constitution of the United States, and especially under sec-
tion four of article four thereof, and under article seven and section one
of article fourteen in the amendments thereto.
That said rights and privileges have been adjudicated upon adversely
to petitioner, who is advised and informed that there is error in said
adjudication, by which he conceives himself aggrieved and injured ;
that he wishes to have said proceedings re-examined, and said final de-
cree corrected by the Supreme Court of the United States.
Wherefore petitioner prays that this hon. court will grant him a
“writ of error,” returnable to the Supreme Court of the United States
in due course of proceedings, the same to operate as a supersedeas;
that the amount of bond to be furnished be fixed; that citation
138. inerror be signed and issued, and for general reliet.
_And as in duty bound, &c.
(Signed) HORNOR & BENEDICT,
: and A. A. ATTOCHA,
2, 17-72. Attys for PU ff in Error.
ey
foo eA ee eae we Ly — fits a, A "7
Fe Des ie 03 BLY Rage ee tt Ree eee OO Cae ie ¥.
wire OE a ee
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JOSEPH A, WALKER VS. CHARLES 8. SAUVINET. | 43
Order.
The within petition being considered, it is ordered that a writ of error
be allowed petitioner, the same to operate as a supersedeas, returnable
to the Supreme Court of the United States on the first Monday of De-
cember next, on his executing bond conditioned according to law in the
sum of two thousand dollars with good security; and that citation in
errror be issued.
NEW ORLEANS, March ticelfth, 1872. |
(Signed) : JNO. T. LUDELING,
Chief Justice Supreme Court -of Louisiana.
139 Bond for writ of error.—Filed March 13, 1872.
Supreme court of Louisiana.
JOSEPH A. hiasaomiscerd
U8. No. 3513.
C. S. SAUVINET.
Know all men by these presents, that we, Joseph A. Walker, as prin-
cipal, and Hugh McCloskey, Tho’s H. Handy, A. W. Merriam, William
Schneider, as sureties, are held and firmly bound unto C. 8. Sauvinet
in the full and just sum of two thousand. dollars, to be paid to the said
C. S. Sauvinet, the clerk of the supreme court of Louisiana, or any
party in interest, his certain attorney, executors, and administrators,
jointly and severally, by these presents. Sealed with our seals and dated
this twelfth day of March, in the year of our Lord one thousand
140 ~=eight hundred and seventy-two. Whereas, lately at a session of
the supreme court of Louisiana, holden in the city of New Orleans,
in a suit depending in said supreme court, wherein C. S. Sauvinet was
plaintiff and Jos. A. Walker was defendant, judgment was rendered
against the said Joseph A. Walker defendant, and the said Joseph A.
Walker having obtained a writ of error, and filed a copy thereof in the
clerk’s office of the said circuit court to reverse the judgment in the afore-
said suit, and a citation directed to the said C.S. Sauvinet citing and
- admonishing him to be and appear at a Supreme Court of the United
States, to be holden at Washington, the first Monday of December
next:
Now the condition of the above above obligation is such, that if
the said Joseph A. Walker shall prosecute his writ to effect, and
141 answer all damages and costs if he fail to make his plea good,
then the above obligation to be void, else to remain in full force
and virtue.
(Signed) J. A. WALKER. iL. &.]
(Signed) HUGH McCLOSKEY. iL. S.
(Signed) THO’S H. HANDY. [L. 8.
(Signed) A. W. MERRIAM. L. 8S.
(Signed) | _ WILLIAM SCHNEIDER. |[L. s.
Sealed and delivered in presence of— |
(S’g’d) JNO. M. HOWELL,
Clerk Sup. Court.
Approved.
(Signed) JNO. T. LUDELING,
| Chief Justice Supreme Court of Louisiana.
”
44 -— JOSEPH A. WALKER VS. CHARLES S. SAUVINET.
Writ of error.—Filed March 13, 1872.
JOSEPH A. WALKER, PL’FF IN ERROR, ?
versus >No. 3513.
CHARLES S. SAUVINET, DEF’I IN ERROR. \
UNITED STATES OF AMERICA, 88
142. The President of the United States, to the honorable the judges |
of the supreme court of the State of Louisiana, fifth circuit, and
holding sessions at New Orleans, Louisiana, greeting:
Because in the record and proceedings, as also. in the rendition of the
judgment of a plea which is in the said supreme court, before you, or
one of you, being the highest court of law or equity of the State of
Louisiana in which a decision could be had, in the suit between Joseph
A. Walker and C. S. Sauvinet, wherein were drawn in question certain
rights and privileges claimed by said Joseph A. Walker, under the Con-
stitution of the United States, and more specially under section four of
article four thereof, and under article seven and section one of article
fourteen in the amendments thereto, a manifest error hath hap-
143 pened, to the great damage of the said Joseph A. Walker, as by
his complaint appears:
We being willing that error, if any hath been, should be duly cor-
rected, and full and speedy justice done to the parties aforesaid in this
behalf, do command you, if judgment be therein given, that then under
your seal, distinctly and openly, you send the record and proceedings
aforesaid, with all things concerning the same, to the Supreme Court
of the United States, “together with this w rit, so that you have the
same at Washington, on the first Monday of December next, in the said
Supreme Court, to be then and there held ; that the record and proceed-
ings aforesaid being inspected, the said Supreme Court may cause fur-
ther to be done therein to correct that error, what of right, and accord-
ing to the laws and customs of the United States, should be
144 + done.
Witness the honorable Salmon P. Chase, Chief Justice of
the said Supreme Court of the United States, this tweltth day of
March, in the year of our Lord one thousand eight ‘hundred and seventy- -
two.
(Signed) [SEAL.| I. A. WOOLFLEY,
Clerk of the United States Circwit Court
for the District of Louisiana.
Citation.
| Supreme Court of Louisiana.
JOSEPH A. WALKER l
vs. No. 3013.°
C. S..SAUVINET. \
THE UNITED STATES OF AMERICA,
Supreme Court of Louisiana :
The President of the United States toCharles S. Sauvinet, of the parish
of Orleans, State of Louisiana, greeting:
You are hereby cited and admonished to be and appear at a Su-
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JOSEPH A. WALKER VS. CHARLES S. SAUVINET. 45
145 preme Court of the United States, to be holden at the city of
Washington on the first Monday of December next, pursuant to
a writ of error filed in the clerk’s office of the supreme court of Louisiana,
wherein Joseph A. Walker is plaintiff in error, and you are notified to
show cause, if any there be, why the judgment rendered against the
said Jos. A. Walker, as in said writ of error mentioned, should not be
corrected, and why speedy justice should not be doue to the parties in
that behalf.
Witness the honorable Salmon P. Chase, Chief Justice of the Sn-
preme Court of the United States, this twelfth day of March, in the
year of our Lord one thovsand eight ‘aundred and seventy-two.
[ SEAL. | (Signed) JNO. T. LUDELING, oe:
28 Chief Justice Supreme Court,
of the State of Louisiana.
146 Sheriff’s return.—Filed March 18th, 1872.
Received 15th Maren, 1872, and on the 16th day of the same month
and year I served a true copy of the within citation on C. 8. Sauvinet,
defendant herein, personally. This service being made by me on ac-
count of said Sauvinet being at this time sheriff of the parish of Or-
leans.
Returned 16th March, 1872.
(Signed) P. CREAGH,
Coroner ist, 4th, Sth, & 6th dist’s.
Affidavit.
On this twenty-first day of September, A. D. 1872, personally appeared
before the undersigned, P. Creagh, coroner for the first, fourth, fifth, and
sixth district, of the city of New Orleans, who, being duly sworn, de-
poses and says, that on the 15th March,.1872, he served a copy of the
within citation on C. 8. Sauvinet, civil sheriff of the parish of
147 ~=Orleans, State of Louisiana, by handing the same to him personally,
as stated In his official return hereon.
(Signed) | P. CREAGH.
Sworn to and subscribed before me this 21st day of September, A.
D. 1872. |
[SEAL. | (Signed) W. L. EVANS,
7 Second Justice Peace, Parish of Orleans.
Certificate of the Clerk.
UNITED STATES OF AMERICA,
Supreme Court of the State of Louisiana:
I, John Miller Howell, clerk of the supreme court of the State of
Louisiana, at New Orleans, do hereby certify that the foregoing one
hundred and forty-seven (147) pages contain a true copy of the tran- |
script of the proceedings had in the eighth district court for the
148 parish of Orleans in a certain suit wherein C. 8. Sauvinet was
_ plaintiff and J. A. Walker et al. were defendants, and also of the
proceedings had in this supreme court on the appeal taken by said J.
A. Walker, which appeal is now on the files thereof, under No. 35138.
In testimony whereof I have hereunto set my hand and affixed the
seal of said court, at the city of New Orleans, this nineteenth day of
46° JOSEPH A. WALKER VS. CHARLES §&. SAUVINET.
October, anno Domini « one thousand eight hundred and serous: two,
and in the ninety-seventh year of the Independence of the United States
of America.
[SEAL. | JNO. M. HOWELL, Clerk.
149 To the hon. chief justice and associate justices of the supreme
court of Louisiana : ‘
The petition of Joseph A. Walker, defendant in a cause wherein
Charles S. Sauvinet is plaintiff, with respect represents to your honors:
That he is aggrieved by the final judgment in the supreme court of
Louisiana, over which your honors preside, (said court being the high-
est of record in this State,) herein rendered against your petitioner, and
in favor of Charles S. Sauvinet; that in said suit were drawn in ques-
tion, as appears on the face of the record thereof, certain rights, privi-
leges, and immunities claimed by petitioner under the Constitution of
the United States, and especially under section four of article four
thereof, and under article seven and section one of article fourteen in the
amendments thereto.
That said rights and privileges have beenad judicated upon adversely
to petitioner, who is advised and informed that there is error in said
adjudication, by which he conceives himself aggrieved and injured ; that
he wishes to ‘have said proceedings re-examined, and said final decree |
corrected by the Supreme Court of the United States.
Wherefore petitioner prays that this hon. court will grant him a writ
of error, returnable to the Supreme Court of the United States in due
course of proceedings, the same to operate as a supersedeas ; that the
amount of bond to be furnished be fixed; that citation in error be signed
and issued, and for general relief.
And as in duty bound, &e.
HORNOR & BENEDICT & A. A. ATOCHA,
: Attys for PV in Error.
150 (Indorsed :) Supreme court of Louisiana. No. 3513. Joseph
A. Walker, pl’ff in error, vs. Charles 8S. Sauvinet, det’t in error.
Petition for writ of error. Hornor & Benedict, att’ys for pl’ff in error.
Filed March 13th, 1872. C. M. P. Julian, dep’y cl’k.
The within petition being considered, it is ordered that a writ of er-
ror be allowed petitioner, the same to operate as a supersedeas, return-
able to the Supreme Court of the United States on the first Monday of
December next, on his executing bond, conditioned according to law, in
the sum of two ‘thousand dollars, with eood security, and that citation in
error be issued.
New Orleans, March tweifth, 1872
JNO. T. LUDELING,
Chief Justice Supreme Court of Louisiana.
151. UNITED STATES OF AMERICA, 88:
The President of the United States to the honorable the judges of the
supreme court of the State of Louisiana, fifth circuit, and holding ses-
sions at New Orleans, Louisiana, greeting :
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JOSEPH A. WALKER VS. CHARLES S. SAUVINET. 47
Because in the record and proceedings, as also in the rendition of the
judgment of a plea which is in the said supreme court, before you, or
one of you, being the highest court of law or equity of the State of Lou-
isiana in which a decision could be had, in the suit between Joseph A.
Walker and C. S. Sauvinet, wherein were drawn in question certain
rights and privileges claimed by said Joseph A. Walker, under the Con- -
stitution of the United States, and more specially under section four of
article four thereof, and under article seven and section one of article
‘fourteen in the amendments thereto, a manifest error hath happened, to
the great damage of the said Joseph A. Walker, as by his complaint ap-
pears: | |
We being willing that error, if any hath been, should be duly. corrected,
and full and speedy justice done to the parties aforesaid inthis behalf,
do command you, if judgment be therein given, that then under your
seal, distinctly and openly, you send the record and proceedings afore-
said, with all things concerning the same, to the Supreme Court of the
United States, together with this writ, so that you have the same at
Washington on the first Monday of December next, in the said Supreme
Court, to be then and there held, that therecord and proceedings afore-
said being inspected, the said Supreme Court may cause further to be
done therein, to correct that error, what of right and according to the
laws and customs of the United States should be done.
Witness, the honorable Salmon P. Chase, Chief Justice of the said
Supreme Court of the United States, this twelfth day of March, in the
year of our Lord one thousand eight hundred and seventy-two.
[SEAL. |] F. A. WOOLFLEY,
Clerk of the United States Circuit Court
for the District of Louisiana.
(Iudorsed:) United States circuit court. No.3513. J6seph A. Walker,
pl’ft in error, versus Charles S. Sauvinef, def’t in error. Writ of error,
supreme court of L’a. Filed March 13th, 1872. Jno. M. Howell, clerk.
152 THE UNITED STATES OF AMERICA,
Supreme Court of Louisiana:
The President of the United States to Charles 8. Sauvinet, of the parish
of Orleans, State of Louisiana, greeting :
You are hereby cited and admonished to be and appear at a Supreme
Court of the United States, to be holden at the city of Washington on
the first Monday of December next, pursuant to a writ of error filed in
the clerk’s office of the supreme court of Louisiana, wherein Joseph A.
Walker is plaintiff in error; and you are notified to show cause, if any
there be, why the judgment rendered against the said Joseph A. Walker
as in said writ of error mentioned should not be corrected, and why
speedy justice should not be done to the parties in that behalf.
Witness the honorable Salmon P. Chase, Chief Justice of the Supreme
Court of the United States, this twelfth day of March, in the year of our
Lord one thousand eight hundred and seventy-two.
[SEAL.] — JNO. T. LUDELING,
: Chief Fustice Supreme Court of the State of Louisiana.
153 Supreme court of L’a. Filed March 18th, 1872.
CO. M. P. JULIAN,
Depy Clerk.
POG Ve May 22.
ee ee i
48 JOSEPH A. WALKER VS. CHARLES ‘8. SAUVINET.
' (Indorsed :) Supreme courtof Louisiana, Ne. 3512. Joseph A. Walker
vs. C. S. Sauvinet. Citation.
Sheriff’s return.
Received 15 M’ca, 1872, and on the 16th day of the same month and
year I served a true copy of the within. citation on C. S. Sauvinet, de-
fendant herein, personally ; this service being’ made by me on account
of said Sauvinet being at this time sheriff of the parish of Orleans.
Returned 16 M’ch, 1872.
P. CREAGH,
° Coroner Ast, 4th, Sth, & 6th Dist’s.
On this twenty-first day of September, A. D. 1872, personally appeared .
before the undersigned, P. Creagh, coroner for the first, fourth, fifth &
sixth district’ of the city of New Orleans, who, being duly sworn, deposes
.and says that on the 15th March, 1872, he served a copy of the within
citation on C.S. Sauvinet, civil sheriff of the parish of Orleans, State of
Louisiana, by handing the same to him personally, as stated in his offi-
cial return hereon.
P. CREAGH.
Sworn to and subscribed before me this 21’ day of September, A. D.
1872. coke :
W. L. EVANS,
Second Justice Peace, Parish of Orleans, La.
154 iKnow all men by these presents that we, Joseph A. Walker, as
principal, and Hugh McCluskey, Theo. H. Handy, A. W. Merriam,
William Schneider, as sureties, are held and firmly bound unto C. S. Sauvi-
net in the fulland justsum of twothousand dollars, to be paid tothe saidC.
S. Sauvinet, the clerk of the supreme court of Louisiana, or any party
in interest, his certain attorney, executors, administrators, or assigns ;
to which payment, well and truly to be made, we bind ourselves, our
heirs, executors, and administrators, jointly and severally, by these
presents, sealed with our seals, and dated this twelfth day of March,
in the year of our Lord one thousand eight hundred and seventy-two.
Whereas lately, at a session of the supreme court of Louisiana, holden in
the city of New Orleans, inasuit depending insaid supreme court, wherein
C. S. Sauvinet was plaintiff and Jos, A. Walker was defendant, judg-
ment was rendered against the said Joseph A. Walker, defendant, and
the said Joseph A, Walker, having obtained a writ of error, and filed a
copy thereof in the clerk’s office of the said circuit court, to reverse the
judgment in the aforesaid suit, and a citation directed to the said C. S.
Sauvinet, citing and admonishing him to be and appear at a Supreme
Court of the United States, to be holden at Washington, the first Mon-
day of December next:
Now the condition of the above obligation is such that if the said
Joseph A. Walker shall prosecute his writ to effect, and answer all
¢ JOSEPH A. WALKER VS. CHARLES 8, SAUVINET. 49
damages and costs if he fail to make his plea good, then the above
| obligation to be void; else to remain in full force and virtue. ; 4
: J. A. WALKER. Le i
a: HUGH McCLOSKEY. L. 8. 4
r; THO’S H. HANDY. Le 8.) iF
\ , A. W. MERRIAM. 3. 8. 4
! WILLIAM SCHNEIDER. [L. s.
| Sealed and delivered in the presence of—
ea JNO. M. HOWELL,
oe : Clerk Sup. Court.
Approved. :
) : JNO. T. LUDELING,
| , Chief Justice Supreme Court of Louisiana.
|
(Indorsed :) Supreme court of Louisiana. No.3513. Joseph A.Walker
vs. C.S. Sauvinet. Bond for writ of error. Filed March 13th, 1872.
©. M. P. Julian, dep’y clerk. John W. Madden, stationer and printer,
73 Camp st.
! (Indorsement on cover:) No. 350. Joseph A. Walker, plaintiff in
| —_ B.. Charles S. Sauvinet. Louisiana sup. court. Filed 7th Decem-
, r, 1872. |
REC. 350—4
EK} gIRe
PRED ME NIIY
re
SIS
(Se RE PMD
Iu the Supreme Cowt of the United States,
October Term, 1874.
JOSEPH A. WALKER,
PLAINTIFF IN Error,
US. > No. 350.
CHARLES S. SAUVINET, |
DEFENDANT IN ERROR.
ibid niahasseetiasionaineasabiitay..”’ sal
In error to the Supreme Court of the State of Louisiana.
Brier oF PLAINTIFF IN ERROR.
Plaintiff in error was defendant in the eighth district
eourt of New Orleans, in which he was sued for ten thou-
sand dollars damages by Sauvinet for having refused to
sell refreshments to him though he offered to pay the
usual price for them, because he, Sanvinet, was a colored
person. The cause was tried by a jury who did not agree,
and then the court of original jurisdiction, under a statute
of Louisiana, gave judgment for $1,000 as exemplary
damages, and all costs of suit.
Record, pp. 1, 2, 25, 34.
The judgment was affirmed by a majority of the supreme
4
1st. Because the jury has a right, by a general verdict,
to decide both law and fact, and no judge can lawfully com- |
pel the conscience of a jury on a constitutional question. ¢
2d. Because if the State law was to be enforced at all, |
it was for the reason the defendant in error had been re-
fused a drink on account of his race or color, @. ¢., on ac-
count of his being a colored man, and unless the jury
found him to be such he had no right of actioir; the refusal
of the judge therefore was error.
All of which is respectfully submitted.
DURANT & HORNOR,
Jer Walker, Plaintiff in Error.
J OSEPH A. WALKER,
PLAINTIFF IN ERRor,
versus No. 6.
CHARLES S. SAUVINET,
: DEFENDANT IN ERROR.
OCTOBER TERM OF 1875.
Writ oF ERROR TO THE SUPREME CouRT OF LOUISIANA.
BRIEF OF DEFENDANT IN ERROR.
I. Plaintiff in error, in his petition for his writ of
error, alleges “ That in said suit were drawn in ques-
tion, as appears on the face of the Record thereof,
certain rights, privileges, and immunities claimed by
petitioner under the Constitution of the United States
and especially under section four of article four
thereof, and under article seven and section one of
article fourteen in the amendments thereto ; that said
rights and privileges have been adjudicated upon
adversely to petitioner.”
Under these allegations, the writ of error was
allowed.
Rec., p. 46,
United States Supreme Court.
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II. Plaintiff was the owner and keeper of a coffee
house, a place of public resort, licensed under the
laws of the State, to which defendant in error resorted,
and requested to be served and supplied with refresh-
ments there kept and sold, with effer of payment, &c.,
conducting himself orderly and respectfully. His
request was refused because he was a colored person,
and was ordered to leave the establishment. This
was wholly on the ground of color, defendant in error
being a respectable person, and at that time Sheriff
of the Parish of Orleans. __
_ After allegations of fact, defendant in error set up
that,“ under the constitution and laws of the State,
he had the right with others, of whatever class or
color, of access to said establishment and to be
supplied with such refreshments as were there being
sold to others. ” -
Rec., pp. 1 and 2.
The only defense set up was “a general denial,”
and on this issue the case went to trial.
Rec., p. 4.
There was judgment for one thousand dollars
damages, against the plaintiff in error. _ ?
Rec., p. 34.
III. On motion for a new trial, it was set up :
First, ‘‘that the act under which this action is
brought is null and void by reason of its being
violative of the Constitution of the United States
and of the State of Louisiana.”
Sixth, “that by the fourteenth amendment of the
Constitution of the United States certain inalienable
rights are guaranteed to the defendant (plaintiff in
3
error) which the laws of the State cannot deprive
him of, among which is the trial by jury.”
Rec., pp. 34 & 35. 7
This motion being overruled, an appeal was taken
to the Supreme Court of the State. |
Rec., pp. 35 & 36.
IV. The Supreme Court of the State, in deciding
the case, state the facts substantially as above set
forth, but in no way, even by implication, found it
necessary to pass upon any Federal question. Even
the dissenting opinion of Mr. Justice Wyly, con-
curred in by Mr. : Justice Howe, claims only a reduc-
tion of damages. |
Rec., pp. 38 to 40.
A rehearing was asked for; the second and third
grounds being in relation to the damages, as exces-
sive; the first only, setting up the unconstitutionality
of Act No. 23 of 1871 of Louisiana, under which
the suit was brought, “ under the provisions of which
this case was decided by the lower court, after the
jury had disagreed.”
Rec., p. 40.
The Court in refusing the rehearing say that, “ We
are not aware of the existence of any constitutional
provision making it imperative upon the legislature to
accord a trial by jury in all civil cases. It was com-
petent for the law-making power to provide that cases
like the one before us should be tried without the in-
tervention of ajury. Therefore, it had the right to
prescribe, as it did in this class of cases, that issues
of the sort here presented should be tried by a jury
if any party in the suit pray for a jury, and to provide,
‘in the event the jury do not agree, or fail to render a
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verdict either for the plaintiff or defendant, that the
case be determined by the Judge.”
Rec., p. 41.
VY. The only possible Federal question then raised,
even collaterally, (for no Federal question was raised
by the regulur pleadings,) was that the Court of the
first instance decided the case, on the failure of the
jury to agree on a verdict. |
It is this feature of Act No. 23 of 1871, which is
complained of, as in violation of the Constitution of
the United States.
There is nothing in the act complained of which
conflicts with the guarantee of a Republican form of
vovernment to the several States,
Article VII of the amendments to the Constitution
provides that “in suits at common law, where the
value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved.” But it has
been repeatedly held, “ that the amendments to the
Constitution do not extend to the States.”
Livingston’s Lessee vs. Moore, 7 Pet., 551.
That “they are exclusively restrictions upon Federal
power, intended to prevent interference with the rights
of the States, and of their citizens.”’ -
Fox vs. Ohio, 5 How., 434.
James vs. Commonwealth, 12 8. & R., 221.
Barker vs. the People, 3 Cow., 686.
See also 7 Peters, 243; 2 Gallis. C. C. R., 138.
But this point it would seem was abandoned in the
State Court.
—— Ree., p. 31.
It is hardly to be conceived, that the first section
of the fourteenth amendment, can be found to have
5
so large a scope, as to prohibit a State legislature from
passing the law in question. Is it one of “the
privileges or immunities of citizens of the United
States,” that his cause shall be tried in the State
courts by a jury, and tried until a verdict shall be
found? In the Slaughter-House cases, the question
of what constituted the privileges and immunities of
citizens was discurred in extenso. But so far, no case
has been found in which a trial by jury in a State
court, was considered one of the rights, privileges or
immunities of citizens of the United States.
The Slaughter House Cases, 16 Wall., 36.
Corfield vs. Coryell, 4 W. C. C., 380-1.
United States vs. Williamson, 4 Am. L. R., 19.
Conner vs. Elliot, 18 How., 591.
Nor does the prohibition, that no “State shall
deprive any person of life, liberty or property with-
out due process of law,” apply to jury trials.
See Murray’s Lessee vs. Hoboken Land Co.,
18 How., 276.
It is therefore respectfully submitted :—
1st, That, no Federal question was raised by the
pleadings and decision in this cause ; and,
2nd, That, if there had been, the act of the
Legislature of Louisiana is not in conflict with any
provision of the Constitution of the United States.
It is therefore submitted that this writ of error
should be dismissed.
J. Q. A. FELLOWS,
Attorney for Defendant in Error.
Batic
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4
verdict either for the plaintiff or defendant, that the
case be determined by the Judge.”
Rec., p. 41.
V. The only possible Federal question then raised,
even collaterally, (for no Federal question was raised
by the regular pleadings,) was that the Court of the
first instance decided the case, on the failure of the
jury to agree on a verdict.
It is this feature of Act No. 23 of 1871, which is —
complained of, as in violation of the Constitution of
the United States.
There is nothing in the act complained of which
conflicts with the guarantee of a Republican form of
vovernment to the several States,
Article VII of the amendments to the Constitution
provides that “in suits at common law, where the
value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved.” But it has
been repeatedly held, “ that the amendments to the
Constitution do not extend to the States.”
Livingston’s Lessee vs. Moore, 7 Pet., 551.
That “they are exclusively restrictions upon Federal
power, intended to prevent interference with the rights
of the States, and of their citizens.”
Fox vs. Ohio, 5 How., 434.
James vs. Commonwealth, 12 8. & R., 221.
Barker vs. the People, 3 Cow., 686.
See also 7 Peters, 243; 2 Gallis. C. C. R., 138.
But this point it would seem was abandoned in the
State Court. |
Rec., p. 31. ates
It is hardly to be conceived, that the first section
of the fourteenth amendment, can be found to have
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5
so large a s. ope, as to prohibit a State legislature from
passing the law in question. Is it one of “the
privileges or immunities of citizens of the United
States,” that his cause shall be tried in the State
courts by a jury, and tried until a verdict shall be
found? In the Slaughter-House cases, the question
of what constituted the privileges and immunities of
citizens was discurred in extenso. But so far, no case
has been found in which a trial by jury in a State
court, was considered one of the rights, privileges or
immunities of citizens of the United States.
The Slaughter House Cases, 16 Wall., 36.
Corfield vs. Coryell, 4 W. C. C., 380-1.
United States vs. Williamson, 4 Am. L. R., 19.
Conner vs. Elliot, 18 How., 591.
Nor does the prohibition, that no “State shall
deprive any person of life, liberty or property with-
out due process of law,” apply to jury trials.
See Murray’s Lessee vs. Hoboken Land Co.,
18 How., 276.
_ It is therefore respectfully submitted :-—
1st, That, no Federal question was raised by the
pleadings and decision in this cause ; and,
2nd, That, if there had been, the act of the
Legislature of Louisiana is not in conflict with any
provision of the Constitution of the United States.
It is therefore submitted that this writ of error
should be dismissed. :
J. Q. A. FELLOWS,
Attorney for Defendant in Error.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.