New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-09-26
TWO JUDGES IN ONE COURT.
Campbell versus Michel.

Michel, restraining him from interterin
q with Benjamin Campbell in the exercise 0
the Office of Recorder Of the Sixth District
j. Q. A. Fellows, Esq, appeared for Re
! corder Campbell, and Charles S. Rice Esu.
for Mr. Michel.
On motion of Mr.. Rice, the commission
E of Mr.. Campbell was ordered to be pro
duced in court.
1t was produced and fled in the case.
Mr. Rice then submitted the answer o.
Mr.. Michel, setting forth the following
points;
l. The present suit is, to all intents and
purposes, suit for the office of Recorder
of the Sixth District, and should be brought
under the intrusion act.
,. The commission of Mr.. Campbell. is
sued by the City Council Of New Orleans,
expired by limitation, and the Office of Re
corder has been held by him by suferance
until such time as his successor was ap-
pointed and qualified. On the twentieth of
September the vacancy not being then
filed, the Governor of the State appointed
respondent who duly qualified. A writ of
injunction is therefore 20: the proper rem.
edy in this case.
The commission and oath Of office Of Mr..
| Michel we're submitted.
| Mr. Fellows-The question Is whether
| the Governor has the right under the law
| to appoint to any office of a municipal char.
| aoter, whether there is vacancy or not.
The constitution of the State left the mat
ter to the Legislature, authorizing it to pro-
vide means for filling all vacancies in Office
The first session of the Legislature there
under made law giving the Governor
under certain circumstances, power to fill
vacancies--this law, of course subject to
revision or repeal by any future LegisIa-
ture. In the year 1870 the Legislature
passed an act which gave a new charter to
the city of New Orleans, and provided in
that charter for the election or appointment
OF all officers of the city by the City
Council. That charter expressly pro
vides that the six recorders OF the
city shall be elected by the City Council
at it first meeting, or as soon thereafter as
possible, for the term of two years. An
other section provides that these officers
shall hold over until their successors are
elected and inducted into office.
This we submit, and this is the whole
question, that the Governor has no right in
the general grant of power conferred BY
the act OF 1868 to appoint any officer or
ill any vacancy provided tor in the charter |
Of the city Of New Orleans, so long as no |
subsequent law provides otherwise. The |
last clause of section seven and section |
thirty-one Of the act Of 1870 is carefully |
explicit on this point. On the fourth day |
of April, 1870, the Council regularly /
elected the six recorders Of the city Of New |
Orleans, and unless they gesign, die, re-
move, OF are impeached, are entitled to the |
office until their successors are elected and |
qualified We are therefore bound TO deny :
the right of the Governor to exercise any
authority that has been taken away fson
him by lave
The point mas been made by she respond
ent that this is not proper proceeding;
that this is q contest for office, and that
therefore there can be no ease. except
under the Intrusion acto This is not CON
test for office 1t is simply proceeding to
restrain respondent from taking possession
of an office he already held9 It has been
TOO frequent for one holding the second
commission, when the first commission was
in force, to seek to obtain possession by
forceo This is the course we are trying to |
prevent. Cases ofthis nature have already
been decided in the Supreme Court. The
proper course is for Mr.. Michel 70 bring suit
under the intrusion act. We have sug-
gested it TO him, but he has declined; and
we are compelled TO believe that unless he
is restrained he will have recourse to VIC
lent measures. 1t would be the duty of
the Attorney General to come into court
and aid him, under the intrusion act. There
has been too much taking of the law into
ones own hands, and the result is the public
has been forced to pay two salaries in many
Mr.. Rice-The first poins made by the
was that these were noe the
proper proceedings to be had in the
PREMISES They alege that we hold COM
mission, and pray that we be enjoinedg fear,
ng we will have recourse 70 force. The |
words Of an INDUCTION could not be broader |
han that have yet to learn that any in
unction can issue to restrain one from COM
hitting crime or an assault. If the injunc- ]
ion is made absolute we are deprived of !
very means of obtaining possession. The
Injunction, if issued, would restrain us from
proceeding through the Attorney General
u due course of law. | once thought this !
vas the proper course to pursue and ap-
,ied here in the case of Billings VS.. Weber,
where the appointment was made in what
vas considered to be vacancy. A petit
ion for injunction was filed in about the {
anne language. In tue trial of the rule I
sisj in that case tile Judgment Of this honor
bile court was rendered against me. |
sled a. new trial, deeming the decision to !
,e contrary to the law and the evidence. |
IN the new trial of the rule, this
Ourt decided that the injunction ought
lot to issue That was parallel case to
his. Our second point is this: The COM |
mission under which the relator presumes /
O hold his Office, now produced in court
xpired, under the law, on the fourth of T
April, 1872. He held the office up to that j
late, for two years. as the law provides the
erm. On the fourth of April, 1872, the time s
anne for appointing the successor. From
hat time he has simply held the Office by
utferance. He has no legal tenure he can |
ct mp as against any other claimant of the
ficeo 1
Again, the act of 1868 is a general act
nd the act of 1870 a spe3iaI actp which can 7
q no wise interfere with it.
The Mayor of the city takes the same I
lew of the situation that l do. In his mes
age to the Council, yesterday, he said:
II beg leave to call the attention of the
}ouncil 10 the fact that the recorders are :
ow acting under appointment without con- I
rmation or election. To avoid legal ques- l
ions which may arise out of this state of
hings, | recommend the Council to elect
or confirm those now acting under
ppointment of the Governor"
The City Council has authority to do lust !
s 1t has done-elect these officers where :
here is legal vacancy. That is, they had >
his authority up to the fourth of April,
ut they did not have the right to act there
fter If they failed to act at the proper
me, it became the duty of the Governor
D act. If there was no vacancy there was 3
o right. There was vacancy. 1t was
He'd by the proper authority, and we are
he person so appointed.
Mr. Fellows-The respondent bases his