New Orleans daily crescent., 1857-09-11
c NJ m
THE COMING ELECTIONS.


stitutional measure and not enjoined, contend
that total failure to observe its provisions would not
vitiate an election held in accordance with the forms
of the Act of 1855, the day by law, pursuant
to writ OF election and proclamation duly issued,
according to the provisions of that Act.
It should be borne in mind that only so much OF
this statute as is inconsistent with the provisions
of the Army bill is repealed by the latter. The only
inconsistency, strictly speaking, between the two
statutes is as to the manner of appointing Commits
sioners Of Elections The increase proposed by the
Army bill in the number of polls in the old estab
shed precincts the organization of the Democratic
police and the creation of the Office Of superntend
ent are provisions rather in addition to the law OF
1855 than repugnant to it. The appointment OF
commissioners under the old law, admitting for the
sake of argument such appointment to be clearly
illegal, would not say, annul the election. 4
Every lawyer is familiar with the distinction be-
tween directory and imperative statutes-between
circumstances which are Of the essence of thing re-
uuired to be done by act of the Legislature and
clauses merely directory. The Act of 1866 provides
that popular elections shall be held at certain times
for officers created by the constitution and laws. 1t
is imperative. 1t looks to the exercise of great
constitutional right. 1t contempates election as
u
officers But the Army BILL which seeks merely
to change the mode of appointing Commissioners OF
Elections, to increase the number of polls ia election
precincts and to transfer at elections the police power
of the city into new aud strange hands is simply di-
rectory in its provisions. The failure to observe those
provisions is nowhere in the statute itself declared to
vitate an election 1t is matter of substance that
elections should be held in pursuance with the con-
,&;t, e l., of bv ,yho
Commissioners of Election and the election police
are appointed. So long the election is held pur-
suant to the constitution. and by commissioners de
facto apparently public officers of right, it is legally
held and cannot be overturned, even though such
commissioners may have held their offices irregu-
ary or illegally. There is no rule of law better es.
tablished and more firmly based on principle and
precedent than that the acts of persons exercising
public functions, and who are de taco public officers,
and apparently public officers of right, should be
maintained in all where the public or third par
ties have an interest in those acts 1t is not neces
sary to quote authorities to establish the existence OF
this familiar principle. A few cases well known to
community, are, however, so german to the sub
ject am considering, that deem it proper to cite
them for the purpose of eSemplfying the manner IN
which this principle has been applied in of elec
those now suggested by designing and desperate poll
ticans, were put forward with view to defeat the
public voice.
In the case of Marigny VS.. Freret, in November
1851 the election of Mr. Freret contested on the
grounds that in two precincts the commissioners of
election did not count the votes in the manner pro-
vided for by law-and that the commissioners and
clerks of election in the tenth precinct were not resi-
dents OF the precinct and qualified to vote therein
required by law To this petition the defendants
counsel Mr.. Roseus, excepted, on the ground that
it set forth of actiontha the requirements
of the law to the qualifications of commissioners
and clerks of elections were merely directory, and
that the nonobservance of these requirements could
not affect the rights which Mr.. Freret had acquired
under the election held under color of law. The
commissioners were admitted to have been Illegally
appointed but the Court sustained the grounds of
the exception, and dismissed the petition of Mr.. Mar
igny. In rendering judgment, his Honor, the late
Judge Larue, applying to the case the principles
have already urged, said that taking the case of
the commissioners and clerks of the 10th precinct,
who were for the purposes of receiving counting and
returning the votes of that precinct public officers
much as any officers in the State could be, they must
be judged of by the rules that apply to all Others and
both the public and individuals having acquired an
interest in their acts, their qualifications to hold the
office which they exercised, the ralidty Of the acts
,ciich then performed in the legal exercise of said
Office cannot be coVateraly inquired into" The cor
rectne,s of this decision was so manifest, that Mr.
Margny acquiesced at once in it.
In the case of the city of New Orleans vs.. ST.
Romes these same principles were laid down by our
Supreme Court The city sued to recover the rail
road tax assessed against the defendant. 1t was al
legged by the defendant that the tax sought to be
levied had been imposed Illegally that the Legsla
ture had authorized such tax only after the ord
nance imposing it had been ratified by majority Of
the voters upon whose property the tax was proposed
to be laid and that such voters, qualified, were
required by the act to be designated to the Commits
missoners of Election by certified lists of their names
The election had been held but lists whatever had
been furnished to the Commissioners. Yet the Su
preme Court held the election valid in spite Of the
OMISSION declaring the requirement of the statute
to the certified lists of voters to be merely direct
ory.' They said they could not construe that pro
vision into condition precedent" Ann Rep, r
SIS.
In the recent case of Augustin VS.. Eggleston, de
cided in May last, the contestant claimed that Judge
Eggleston had not been duly elected Judge of thu
Fifth District Court of New Orleans. The mair
ground of contest was, that the election was helt
under the law of 1855, which was repealed, ant
ought to have been held under the Army bill, which
was then of force. In the argument which heard
it was conceded that the Army bill was intended by
the Legislature to be then of force but it urget
that an election held under the forms of the old Law
was not the less valid for that The Suprem,
Court, through Mr.. Justice Spoford, in substance
adopted the argument and held that, "a considering
that the first Monday of April, 1857, was the da,
fixed by law for electng Judge of the Fifth Dstrc
Court of New Orleans that writ of elections dull
issued, and proclamation thereof was duly made
that an election for said Office actually held ol
that day, both plaintiff and defendant being cand
dates that the returns as made are conceded to in
dicate the election of the defendant ETC.. the eec
ton was valid, and the petition of Augustin must b
, dismissed.
might multiply authorities in support of my pos
ton, but it is needless Surely, from the few l hav
cited, it becomes plain that if the election which tn
constitution and laws require to be held on the Is
Monday of November next, be held under color &
law, such election will be valid, even though tn
Commissioners of Election be illegally appointed.
nonobservance of directory statutes cannot rob til
people of their constitutional right of election whic
once exercised, may not be invalidated account
the accidental or even wilfu disregard of forms
h,r t,is p1as stiOn "a nb Arm,