The Donaldsonville chief. [volume] (Donaldsonville, La.) 1871-current, 1871-10-14
The ROEee-HerrOn Case.
Decision Adverse to Bovee-Goy. War
moths Action Sustained.


during the absence of Judge Dibble,
on Monday of this week rendered the
following decision in the case of Geo.
E. Bovee as. F. J. Heron, suit un-
der the intrusion act to regain posses
sion of the Office of Secretary of State:
The Governor suspended the Secre-
tary of State, and assigned the defend
ant to the duties of that Office dd IN
terim. Whereupon these proceedings
were commenced to test the validity
of that act, and under them the de-
fendant is charged with being an in
truder into the Office and with unlaw-
fully exercising its functions. He JUS
titles under the appointment, which he
asserts was consequent upon malver
sation by the Secretary.
On the part of the relator it is
claimed that the Executive can law
fully exercise no power which is not
expressly granted by the organic and
statutory law, and such other powers
as may be necessary to carry the ex~
Iress grant into effect; and that the
act in question, being without the
sanction OF express law, is illegal and
an usurpation. |it
1t is conceded that the Governor
cannot remove constitutional officer,
and that he cannot resort to suspension
where mode of accomplishing that
object has been provided by law.
The offices of Secretary, Treasurer
and Auditor are not positions of the
Legislative or judicial departments.
Hence, the argument against the in
reference of one branch of the gov
ernment with the duties of another,
has no application in this case.
Here the question is not one of re-
moval and thus creating a vacancy,
but of suspension; SO that the problem
to be solved is whether in the absence
of any constitutional or statutory pro-
vision an emergency might not arise
IN which the Governor would be JUS
titled in suspending an officer from his
functions.
Undoubtedly emergencies may hap
pen in which the public interests would
be protected by prompt and speedy
action, before the Legislature could be
convened or criminal prosecution
could be terminated. Indeed, emer-
gencies may happen in which the law
had made no provision whatever. In
such cases what steps can be legally
takenf The Legislature not being in
session, perhaps can do nothing !; and
the Judiciary could not take cogni-
zance of the matter. But is the Gov
ernor powerless to act? Are his hands
tied to the extent of compelling him
to remain passive, and witness a rep
etition or continuance of fraud and
peculation without the right to inter-
fere Around the offices of Auditor
and Treasurer guards have been
placed, and certain of their acts are
declared to be misdemeanors and
highly yenal offences but as to un-
! lawful acts on the part of the Secreta-
| ry the law is silent. No official act OF
his, either of nonfeasance, misfeasance
or malfeasanee, is made criminal by
statute, and yet, SO far as executive
! power is concerned, he can, it il
claimed, set the law at defiance. Some
of his duties are prescribed by the con-
stitution and Others by legislative en-
actment. Suppose the Treasurer should
appropriate to his own use the funds
of the State, is power lodged nowhere
4 to apply prompt and efficient rem
/ edy? In the former supposition, the
law furnishes none, and in the latter
the slow process of accusation, indict-
ment and trial, or of examination and
/ report by named officials, must be re.
sorted to, and in both, according te
the argument, the Executive is with
out authority.
4 In the words of the constitution
not simply the executive power, but
the supreme executive powerr il
vested in the Chief Magistrate thai
is TO say, he may use authority which
does not reside elsewhere. He il
sworn to support the constitution
Article 65 requires him to take care
that the laws are faithfully executed
This injunction forms separate and
distinct. article, as if to make The
requirement more emphatic. 1t is q
command it imposes an imperative
duty; it is an investment of power
not delegated to either of the Other
branches of the Government; and il
it can be used only where express Law
defines and authorizes its exercise, the
article is a dead letter and mean,
nothing. On what occasions and il
what manner shall he " take care thai
the laws be faithfully executed ~ No
by remaining an idle spectator of of
fetal infidelity, but by stepping for.
ward at once and protecting the inter.
] est of the State, especially where M
remedy is expressly provided. Where
remedy and a mode of procedure ar.
provided, they must be followed, bu
where they are not provided, the Gov.
ernor still is commanded TO see to tht
faithful enforcement of the law; ana
having that power he also has the ad
ditional power TO carry the express
grant into effect, and this implied au
thority may be used in such name
as to render ii effectual. Therefore. i