The Louisiana Democrat. [volume] (Alexandria, La.) 1845-1918, 1869-08-18
pellee; Isaiah Garret for defendant
and appellant,


erno', nor can he Exercise judicial Pop-
ers Secenth Section Of Eligibility A CT
Unconstitutional Officers must be Re
mtoued In the Manner Indicated in the
Constitution.
The State of Louisiana, er rel r. G
Downes vs.. E. B Towne. Appeal from
Thirteenth District Court. parish of Mad
ison. Wiley. j. At the April election OF
1868, the relator, Richard Charles Downes
was elected parish judge Of the parish oil
Madison, and received his certificate Of
election on LIST OF July, 1868, from r. G.
! Buchanan, then commanding the Fifth
Military District. On l4th July, 1868, he
received his commission from the Govern.
or of the State, and on the same day con-
stitution of 1868 and entered on the du-
ties of his Office.
On the Oath Of April, 1859, the defend
ant Z. B. Towne, was appointed by the
Governor and commissioned to the same
Office then administered by the relator
Downes, taking the oath required by the
constitution and laws He also attempted
to discharge the duties of the office oil
Parish Judge, when the relator, r. G.
Downes, and the District Attorney insti-
tuted this proceeding against him, under
the act Of the 9Th of September, 1868
amended by act of the 18th of October OF
the same year, providing remedy against
usurpation, intrusion into, or the unlawful
holding, or exercising q public Office or
franchise in the State. Acts 1868, PIP. Il
/, and 1919.
The defendant, E. B. Towne, denied
that he had usurped, intruded into or un-
lawfully 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
relator, Richmond Charles Doves, is him.
self an usurper, intruder, and unlawfullq
holds the Office of parish judge, because he
failed to comply with the provisions Cf act
No. 80, commonly known as the ''elieibiIi
ty act" passed in September, 1868, which
prescribes an oath to test the eligibility Of
those, elected or appointed to Office OF
already in Office. The seventh section oil
said act provides "That in case commits
sions have been issued to any persons
elected or appointed to Office before the
passage of this act, or if any person has
been sworn in, or entered on the discharge
of the duties of any Office which does not
require commission, all such persons
shall take the oath required by section
three of this act, and file the same in the
Office of the Secretary of State within thir-
/. ty days after the PRONUNCIATION of this act
and in the event of their failing to do so
the Governor shall declare such persons
ineligible to office, and their offices vacant
and the offices shall be filled as prescribed
by the constitution aud laws of this State.
Acts 1868, p. 46. The defendant alleged
that the relator, Downes, failed to take the
oath and file it in the Office of the Secreta
ry of State, as required by sections three
and seven, and that the Office became there
by vacant. and he was duly appointed
thereto.
He also alleged that Downes is prsclud
ed 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 priol
to the rebellion and afterwards aided ant
assisted therein.
The court below gave Judgment in favo
of the relator, quoting him in the exercise
and possession of the Office of parish judge
of the parish Of Madison, and decreein.
the appointment of the defendant, E. B
| Towne, to be void, aud excluding him FROM
said Office.
i The defendant has appealed.
The reiator contends that he took tht
oath of eligibility within thirty days, bu
did not file it in the Office of the Secretary
of State; that the provisions of said &c
requiring him to do so is unconstitutional
He also contends that he is not disqual
fed from holding office by the fifteenth
amendment of the constitution of the Uni
ted States, never having aided 10 the re
beIlion.
The validity of the appointment o
Towne depends on the fact whether Their
was vacancy in the Office Of parish judg
of the parish of Madison If there was nj
, vacancy, there could be no valid appoint
mem.
Downes was duly elected, commissioner
an qualified, and was performing the dutie
! of the Office at the time and before tn
passage of the eligibility act, and also whel
the defendant, Towne, was appointed b
the Governor. Holding a constitutions
Office he could be removed by impeach
ment or address of the Legislature, or b
proceedings under the act commonly know
/, as the "Intrusion Act" If it should b
j iudicialIy ascertained that he is disqualife
/ BY the constitution of the State or of th
United States.
: Until it be determined by judicial pro
ceeding cnntradictoriy with him that he i
disqualified under the 18th amendment c
: the constitution, there is no vacancy.
q he be not disqualified under the paramount
law of the land to hold the Office, he car
j not be removed in any other manner tina
5 that indicated 10 the constitution. Hi
j disqualification under the 18th amendmen
can only be determined judicially. tn
Legislature cannot Authorize the Chic
r Magistrate of the State to decide the ques
: ton.
To decide whether the relator, Downe;
f is disqualified or not to hold Office udde
, the 18th amendment of the constitution G
; the United States, is purely q judicial ques
ton The 73d article of the constitutio
provides that "The judicial power sha
be vested in Supreme Court in distric
courts, in parish courts and in justices c
, the peace.
We are of the opinion that the Goverao
, could not legally and coustitutionally az
f point the defendant, E. b. Towne, to To
Office of parish judge, until the incumben
Richard Charles Downes, was removed b
impeachment or address of the Legislature
or until his disqualification was determine
by the court.
The evidence in this case fails to estat
, fish conclusively that Downes is disqual
fed under the fourteenth amendment c
the constitution of the United States
, Failure to take the oath testing his eligl
biity and to file it in the office OF the Sec