The Opelousas journal. [volume] (Opelousas, La.) 1868-1878, 1869-06-19

10y
struction laws, Louisiana became a State,
Lnt!tlcl tn representation in the national
Congress. From that time the COnstitu
ton Of 1868 became operative. as amended
by Congress. The clause above quoted, in
reference to the eligibility of officers, un.
der the third section of the fourteenth
amendment, became virtually a part Of the
Constitution, as binding as any other Of its
provisions. The third section OF the
fourteenth amendment, thus became a part
OF the State Constitution, before its final rati
@tication by the requisite number Of States, and
fell within the scope ofState legislation. 1t
defined the eligibility Of officers under the
State Constitution, devolving upon the
Legislature the duty of defining the man
ner in which this eligibility should be as
,erlainel and determined.
The Legislature by Act No. 80, a IS of
1863, p. 40 provided, in order to ascertain
and test the eligibility of persons elected or
appointed to office, that the evidence of
the fact should consist in their affidavitS,
according to the third section of the Act.
In the case of officers elected and commits
stoned before the passage of the Act, sec.
seven requires that the oath shall be filed
"in the office Of the Secretary of State
within thirty days after the PRONUNCIATION
of the 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 and laws of
the State"
The Constitution, which creates the
Office of Sheriff, makes no provision for
supplying a vacancy in that office. Article
12O however gives the Legislature the al
thority to determine the mode of filling
vacancies in all offices for which provision
is not made in She Constitution" Acting
under this authority, the Legislature, (Acts
of 1868 p. 81 provided
"That whenever a vacancy occurs in
any office, State, parish, or municipal, in
this State, now existing, or which may
hereafter be created, from death, ~resiSna-
ton, or from any other cause aohuteuer, the
mode of filling which is not provided for
in the Constitution, all such vacancies shall
be filled, if they be State or parish Offices,
by appointment by the Governor, with the
advice and consent of the Senate, which
appointment shall be for the entire unex-
PRED term of such. vacant office. If the
Senate be not in session at the time the
appointment is made, t. vacancy shall be
filled by appointment by the Governor,
which appointment shall expire on the
third Monday after the meeting of the next
session of the General Assembly thereafter
&C."
The Governor, wss therefore, the only
person authorised to fill the yacances con-
templated by the above Act No. SO.
1t is contended that this law is unconsti-
%tutional, and that the Legislature has
transcribed its authority. The Legislature
the State, unlike Congress, which can do
that the federal Constitution does
not authorize, may do everything that the
Constitution does not prohibit. 60
Rob. All II An. 33S; - An. 1897 In
egislating upon this subject, the Legisla-
;ure is not prohibited by the State Consti-
ution, for that instrument as amended by
Congress, creates the disability provided in
he third section. The Legislature, by Act
10. 80, has not created a disability in any
but has only defined the evidence
necessary to ascertain the existence or non.
Existence of a disability created by the
The statute is in the nature
# a remedial law. 1t provides the means
reinforcing a Constitutional provision. 1t is
lot retroactive in its effect upon any ac-
uired right. 1t is not an er-post. tacto
aw, because it is not penal. 1t leaves to
he officer his right to his office under the
aud permits him to establish,
'ithin a reasonable time, by his own aft
avit, his eligibility to office. If he is
the mode of establishing it is SIM
lie, and within his exclusive control. If
e is not eligible, he has no acquired right,
nd cannot complain. If, under the cir
um~stances, the Office becomes vacant, it is
OF the Act of the Legislature for the stat
te No. 80 dcos not vacate any of the
fices, but provides the means of ascer.
lining when and how they become vacant
order that they may be properly filled.
Finding, in the Constitution, no prohibi.
on against the action of the Legislature
the exercise of its authority. in the
after under discussion, the Court, is of
oinion that the Act, SO far as it has been
,nsidercd, is valid.
But it is contendcd in argument, that the t
ct No. SO even if valid, did not REQUIRE S
le plaintiff TO take and file the eligibility {
It'll prescribed by section three of the Act, S
the following words: G
"That | never engaged in any insurrec- a
m or rebellion against the United States, i
gave aid and comfort to the enemies :
treof, after having taken an oath as =