The Opelousas journal. [volume] (Opelousas, La.) 1868-1878, 1869-08-14
SUPREME COURT.
IMPORTANT DECISION.

Downcs, WAS elected parish Judge OF
the parish Of Mad son, and received his
certificate Of election on the lst Of July,
1865, from L. c.. buchanan, then com
nandine the Fifth Military District. On
l4tl July, 1868, he received his com
mission from the Governor of the State,
and on the same day took the oath OF
office pre- cribrd hy The constitution of
1868, and entered upon the duties OF
his office.
On the 2 It'll of April, 1860, the de-
ftndant, + j. Towne, was appointed
! by the Governor and commissioned to
same office then administered by Tie
rela,or. Downes, taking the oath rcquir~
ed by the constitution and laws. lie
also attempted to discharge the duties Of
Parish Judge. when the relator, L. C
Downes, and the District Attorney in
stituted this proceeding against him,
under the act of the Sth of September,
| 1865, amended by act of the 18th OF
October of the same year, providing a
remedy against usurpation, intrusion in
to, or the unlawful holding, or exescis-
ing public Office OR franchise in the
State. Acts 1868: PIP. II and 1919,
The defendant, 4. B. Towne, denied
that he had usurped, intruded into OR
unlawfully held the office of parish
Judge; but claimed to exercise the
functions of said office by virtue of his
appointment and commission from the
Governor under the seal of the State.
He charged that the rclator, Richard
Charles Downcs, is himself an usurper,
intruder, and unlawfully holds the Office
OF parish Judge, because he failed to
comply with the provisions Of act No.
50, commonly known as the eligibility
act," passed in September, 1868, which
prescribes an oath to test the eligibility
of those elected or appointed to office Or
already in office. The seventh section
of said act provides: "That in case
commissions have been issued to any
persons, elected OK appointed to office
before the passage of this act, or if any
person has been sworn in. or entered
upon the discharge of the duties of any
office which does not require commits
sion, all such persons shall take the
oath prescribed by section three of this
act, and file the same in the Office Of the
Secretary Of State within thirty days
after the PRONUNCIATION of this act; and
in the event of their failing to do SO, the
Governor shall declare such persons in
eligible to office, and their offices vacant,
and the offices shall be filled as prcscrib-
ed by the constitution and laws of this
State" Acts 1868, p. 46. The defen-
dant alleged that the relator. Downes.
failed to take the oath and file it in the
office of the Secretary of State, as requi-
red by sections three and seven, and
that the Office became thereby vacant,
and he was duly appointed thereto.
He also alleged that Downes is pre-
cluded from holding said office by the
fifteenth amendment to the constitution
of the United States, he having been
parish Judge and member of the State
Legislature prior to the rebellion, and
afterwards aided and abetted therein.
The court below gave jugdment in
favor o! the relator, quieting him in the
exercise ard possession Of the Office Of
parish Judge Of the parish of Madison,
aad deereeing the appointment of the
defendant, E. B. Towne, to be void, and
excluding him from said office
The defendant has appealed.
The rclator contends that he took the
oath of eligibility within thirty days,
but did not file IL in the office of the
| Secretary of State; that the provisions
of the act requiring him to do SO is IN
constitutional. He also contends that
he is not disqualified from holding office
by the fifteenth amendment Of the con-
stitution of the United States, never
having aided in the rebellion.
The validity of the appointment Of
Towne depends on the fact whether
there was u VACANCY in the office OF
parish judge of the parish of Madison.
If there was no vacancy, there could be
no valid appointment.
Dowues was duly elected, commits,
stoned and qualified, and was perform
ing the duties of the Office at the time
and before the passage of the eligibility
act, and also when the defendant, Towne
was appointed by the Governor. Hold
ing constitutional Office he could be
removed by impeachment or address Of
the Legislature, Or by proceedings under
the act commonly known as the '' In
trusion Act" if it should be judicially
asccrtainod thst be is disqualified by
the constitution of the State or of the
United States.
Until it be detcrp.ined bv a judicial
proceeding couiradictoriIy with him
that he is disqualified under the 15'l
| amendment Of the constitution, there il
no vacancy. If he be not disqualified
under the paramount law of the land te
hold the Office, he cannot be removed in
any other manner t,san that indicated in
the constitution. His disqualification
under the 18th amendment eau only bt
determined judicialIy. The Legislature
cannot authorisc the CLicf Magistrate
of the State to decide the question.
To decide whether the rela.or, Downei
is disqualified Or not to hold office unde
the 18th amendment Of the constitution
of the United States, is purely judicia
question. The 73rd article of the con
stitution provides that: "The judicia
power shall be xestea in Suprem
Court, in district courts, in parish court
and in justrces of the peace"
| We are of the opinion that the Gov