New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1868-10-21

State on the relation of Francis Stern
berg VS.. Cleophas Lagarde.-A writ of
mandamus was issued in this case on the
relation of Francis Sternberg in his alleged
capacity Of newly appointed Sheriff of the
parish Of Lafourche against the defendant,
Cleophas Lagsrde, the former incumbent of
said office, to show cause why said defend
ant should not deliver to relator possession
of the Sheriff's room and turn over TO him,
said relator, the keys, papers, records,
books, documents, etc., belonging to said
Office. a
Various exceptions were fled in this case
by defendants counsel and were overruled
| (See bills OF exceptions.) The answer filed
by defendant AYERS that he was the
only Sheriff Of this parish, That re-
lator failed to qualify q under his
former commission. That he was appointed
by the Governor without the consent and
advice of the Senate; that his bond was
not executed according to law, etc.
The facts Of the case as appears from the
evidence on file are as follows; The rela-
| tor F. Sternberg, was duly appointed
Sheriff of Latourche parish on the twenty
fourth of August last by H. c. Warmoth,
Governor of the State of Louisiana, and
commissioned as such. He took the neces-
sary oath and otherwise qualified as the
| law directs on the twenty-lifth of August
last. He made, in vain, a demand on de-
tendant of the Sherii's office, records,
papers, etc, on the twenty-second of Sep
| TENDER last. Public notices were given
that he was the Sheriff, and he opened a
regular Sheriff Office on the twenty-third
Of the same month. He caused notices to
tax payers to come and settle with him to
ha 4aA a I
| public places. And he now runs the Sher-
ifs department while defendant retains the
papers and records OF the office.
l am at loss to conceive upon what
reasonable ground the REALTORS claim can
former incumbent of the office and who
was fttnchts oficio since the twenty-ffth
August last. (See Constitution, articles $50
and 1851 But it has been strenuously con-
tended with great zeal and ability, indeed,
by defendants counsel, that REALTORS Official
bord was not executed according to law.
There is no proof offered by defendant to
substantiate this objection, though this bond
was legally recorded in the office of the
Parish Recorder, where it is deposited, as
| understand.
In twelfth Annual, p. 719, which was
mandamus granted on the relation of one
F. Vienne, who had been legally elected
and commissioned by the Governor as
Sheriff against the first incumbent, S. NJ.
Hyams, to deliver to relator the KEYS of the
prison, the Supreme Court held thus: ave
are unanimous in the opinion that we can
not go behind the commission to examine
the proof upon which the Governor acted
in issuing the REALTORS commission.
and to 7 verse his decision and the man
damus was made peremptory. This doc
trine was reaffirmed in II A. 156, which
was the case of the State on the relation
OF Charles Bienvenu, newly appointed
Sheriff by the Governor, against S. Wrot-
nowski, Secretary of State, Alfred Shaw,
former Sheriff, intervenor, in which the
Supreme Court said:
what injury, then, could by any posi- |
bility result to the first incumbent 1.-THE |
former Sheriff, Shaw, by the new appoint
ment, if it were illegally made? 1t would
be to him daB1nln dbSQu8 iVTid." (See |
II, A. l56, and authorities there cited, |
disposing pretty much of most the same
objections urged in this case.) The pre-
sumption forces itself upon the mind that
the Governor only issues commissions upon
the parties complying with the require
ments of law. (See Revised Statutes, page
2l8, section SO, and act of lSG4-'G5, page
"a, No. 49, As to the objection that the
commission does not contain the words.
with the advice and consent of the SEN
ate" the Court is of opinion that the high
est executive officer Of the State is
sworn officer, and is presumed |
to have done his duty e.. that |
he has appointed the relator Sheriff with |
the advice and consent Of the Senate, till |
thn zHrar 10 IL Al,
knows of no law requiring these words to |
be expressed on the face OF the commission: |
Onlnid prG3Sluluntlf solenmituT eSSe dctd is a |
sound rule Of law. The Governor has the |
undoubted right to determine for himself |
from information communicated to him, |
when appointments become necessary, but |
he is under no legal obligation to commu- |
nicate to a ftnctts o6ici0 Sheriff or to any !
one else upon what information he acts. |
But does the defendants counsel really SUP |
pose that it devolVes upon the Court to |
consider whether he could legally go be- |
hind the commission issued in due form to |
relater by the highest executive officer of |
the State, and examine into the evidence |
upon which he acted? Whatever i'm |
providence or Illegally there may
be in the Issuing of such commission |
that concerns not defendant, and can never |
compromit him. The State alone has the |
right to enforce the remedy provided for in |
such cases. (R. s., p. 524, sec. A.
1t is not the province of courts OF Justice |
to inquisitively seek to know upon what
facts the Executive predicated his action in |
the performance of constitutional duty. |
II any such controlling power in the courts
could ever exist it would indeed, produce |
consequences of the most startling charac-
ter. 1t might stop at will the whole ma |
chinery of government, and thus para
lyze constitutional acts of the Executive. |
II is much better for the good of the peo-
pie that the three branches of the Govern
ment, SO wisely devised by our fathers,
should be kept separate and inviolate in the I
legitimate exercise Of their respective
duties and powers.
Bot unfortunately there seems to exist |
nowadays in some country parishes
manifest disposition on the part of the Off
GERS OF the old regime, (which l am glad to
acknowledge is not the case in this instance,
as l was informed by eounsel), to go on /
Fith the business as il no change ever took
place, and keep the new elected and ap-
pointed officers, legally entitled to the Of
ices, out OF the same in the hope that some
thing might turn up that will protect them
In setting the laws Of the country at de-
iance. It is very desirable that this state
of things, which is frowned down BY all
good and law-abid ny citizens from all par
ties, should be restrained. Alas for our
State Government if its three branches of
power were unable to unite in concert of