Dissenting Opinion.
Fenner, J.I am at an utter loss to understand what practical result is to flow from our mandate in this case.
The respondent judge, in his answer, informs us that the case in reference to which our interference is invoked, although held under advisement for an unusual length of time, is one involving complicated facts, a vast record, and numerous and difficult questions pf law. Far from refusing to decide it, he tells us that he is and has been actively engaged in its study and investigation, and will decide it as soon as he has completed the examination and reached a conclusion, which, he believes, will be before the adjournment of the court. In confirmation of this statement he has exhibited to this Court the huge record which filled up no inconsiderable portion of the private office of the clerk.
What more, I would ask, can our mandamus require of him than what he is doing and proposes to do? Is it to be supposed that, when our mandate reaches him, he is to decide the case out of hand, whether he lias reached a conclusion or not? Shall he toss up a penny and give judgment for plaintiff or defendant, as chance may determine?
When we are called upon to enforce our mandamus by process for contempt, what shall we do, if he makes then the same return which he makes now? Shall we fine or imprison a judge for nob deciding when he tells us that notwithstanding due diligence, his mind has not yet reached a conclusion as to how he should decide?
In my view, the judicial function is the most sacred of all the trusts confided to man. It involves something more than a mere exercise of the will. Its exercise requires conviction of the mind and satisfaction of the conscience. The power is not lodged in legislatures or supreme courts to dictate to the judicial mind, “Be convinced,” to the judicial *614conscience, “Be satisfied”; and that judge would be unworthy of his office, who, without a mind convinced and a conscience satisfied, would, under any compulsion, decide upon the controverted rights of his fellow-citizens submitted to him under the solemn sanction of his official oath.
’When a mandamus lias been made peremptory commanding an inferior judge to decide a case without further delay and he disobeys or fails to obey that mandate, the Supreme Court will order the recalcitrant judge to be arrested and imprisoned until he has obeyed its mandate.From the very nature of things it is evident that the act of the legislature referred to is an unwarrantable encroachment of the legislative upon the judicial power and is mere brutwn†ulmén, in so far, at least, as specific performance of the duty imposed of deciding within thirty days is concerned. Whether the penalty denounced, or other proper penalties for dilatoriness in the discharge of judicial duty may be enforced or not, is a question not before us.
It is equally clear that such a case as the one here presented is not within the contemplation of the provision of Art. 838 of the Cede of Practice.
That provision obviously refers to wilful acts of a judge, such as a refusal to decide or a failure to take up a cause for consideration with a view to decision or to cases in which the delay is obviously unnecessary and not in good faith. In such a case he might be ordered to consider and determine the cause, certainly never to d.ecide without considering.
When, as in this case, we find the judge engaged in the active consideration of the cause with a view to speedy decision, it does seem to me that we exercise an unwarranted interference when we assume to order him peremptorily to decide forthwith.
For these reasons, I most earnestly dissent from the opinion and decree herein.
Manning, J.Our mandate to the respondent judge to decide without further delay the cause wherein the relator is plaintiff and R. P. Aldige and Jules Aldige are defendants having been sent down and not having been obeyed, the relator has moved that the judge shew cause why an order of arrest and imprisonment should not issue thereon.
The judge answering disclaims that his non-decision of the cause is due to contempt of the authority of the court or to any desire to disobey or evade its mandate, and avers that he construed it to mean that *615he should examine the cause with all possible diligence and decide it according to the law and the evidence. He states that he has been “faithfully engaged in the preparation of his opinion every spare moment of his time for a long period prior to the application for a mandamus, and that as soon as he can finish this opinion, which will probably be in the course of the following week, he will render judgment as required in the mandate.” If however he has misconstrued our mandate he begs that we will instruct him what judgment he shall render.
It is beyond our province to instruct or our power to command what judgment shall be rendered in the suit at its present stage. We can only order him to proceed to judgment. We have done that, and the Code of Practice directs “if lie does not obey, an order of arrest shall issue and he shall be imprisoned until he has rendered obedience.” art. 843.
The terms of the article imply that all the reasons of the judge for his non-decision of the cause shall have been heard and passed on when the mandamus was made peremptory, for the language is imperative, “if his answer is considered insufficient, then a peremptory mandate shall issue” and the penalty of his disobedience shall be arrest and imprisonment.
Therefore the reasons now given for disobedience are merely those given or which should have been given why our peremptory mandate should not issue. That matter is closed and our decree rendered thereon was unambiguous and not difficult to be construed.
The application for the mandamus was made on f he fifth of the present month. It is now the twenty ninth and this term of our court must end to-morrow. We had hoped that as the respondent had been preparing his opinion long before the application for the writ was made, we should have had the satisfaction of knowing that its completion and the rendition of a judgmeutin the cause had relieved us of performing a disagreeable duty.
The law has given the relator the remedy now invoked by him and it has very distinctly and directly imposed on us the obligation to apply it. We have nothing to do with its reasonableness or unreasonableness.
Since however the respondent informs us that he will probably be ready to decide the cause within next week, we shall suspend the execution of the order for his imprisonment for one week from to day.
It is therefore ordered and decreed that the respondent Henry L. Lazarus be arrested and imprisoned in the jail of this parish until he *616lias obeyed the mandate of this court heretofore issued to him iu the proceedings for a mandamus in this cause. And it is further ordered that the execution of this decree is suspended for one week from this day, that is to say .this suspension expires with Friday the 5th. day of June next.