New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-11-21
DECISION OF JUDGE D4BBLE.
The Returning Board Epioinedo

rected che injunction issue as prayed for.
restraining the defendants from acting as
returning officers pende,atc lite Il will DO
found that in the course Of the decision
Judge Dibble is Of opinion that "a eoaP
d'etut ia not :2n American institution"
The State of Louisiana, On the infosma-
tion of the board of returning officers IS
Jack Wharton ct ala.-The argument OF
this case has taken much wider range
than the decision of the court need CON
sider 1t seems that the issue made be-
tween these persons claiming To be return
ing officers of election should b8 determined
upon questions of Law aside from any
political issue that may urge upon the at
tention Of the court. A petition has been
filed by the Attorney General under an act
known as the intrusion in office act. Ii sets
forth that III. c. WarmOth, John Lynch, /.
j. Heron, Jacob Hawkins and James
LOngstreet are, under the provisions OF the
general election law, the board of return
ing officers OF election. 1t charges that f,
Fl. Hatch, Durant Da Pente and Jack
Wharton are illegally assuming and exer-
cieing the duties and functions of the board
of returning officers in violation OF Law.
The prayer of the petitioners is that the de-
PENDANTS be decreed TO be illegally usurp-
ing and unlaWtuily intruding into these
State, declaring that the State and the per
sons named and joined with the State as
plaintiffs, be dccreed to be the board of re-
turning officers Of election. This petition
has simply been filed, and as yet no
plea has been made thereto, but %
supplemental petition was filed by the At
torney General joining the persons whom he
alleges to be the returning officers, in which
he alleges that the defendants are likely to
go conduct themselves as to render it i'm
possible for the court to execute its iudg-
ment should il be in favor Of the persons
Joined with the State, and d prayer is made
that the injunction issue against these de-
tendants, restraining them from acting as
returning officers pc1,des1te lite. 4 rule nisi
was ordered. and We have heard argument
on this application.
To this rule defendants have filed an
answer, in which they first plead to the ju-
risdicti0n of the court, and secondly, ira
verse the facts set up by the State in the
petition and supplemental petition. L: is
insisted bv the counsel for the defendants
that this court is without jurisdiction III
this case because the persons alleged to be
returning officers and the persons charged
with illegally intruding into the said offices
are not officers within the meaning Of the
act known as the intrusion into office act,
and that therefore this court has no juTis-
dicti0n to determine the issue thus attempt
ed to be made; but the act known as the in'
trusion into office act was enacted as q sub
stitute for all statutory provisions regulating
writs of quo WaTrantO, by which, intrusion
into common law, courts inquire into the
rights of persons claiming to exercise func-
tons Of office and franchises, and into the
statute by which this suit is brought the
right is given to inquire into the right of
persons to exercise franchises, g word which
has broad significance, and covers the
case at bar These persons were named
officers in the election law, and are claiming
to exercise important functions, Ia which
the whole State is interested, and IN which
the whole people Of the State are interested,
and it is certainly within the province of
the Attorney General 20 inquire into the
right OF persons claiming to exercise she
duties OF such OfiCee.
Then passing from the question OF iuris-
Giction. the defendants make issue with the
plaintiff upon the questions Of fact get up
in the petition and supplemental petitions.
The act known as the election law provides
that all returns o. election shall be can
vassed and declared apoD by a board Of re-
turning officers. to cousist of the Governor,
the Lieutenant Governor, the Secretary ct
State and John Lynch and I. &. Anderson.
Ii was urged by counsel for defendants that
the provision of the law, naming those gen
tlemen as returning officers seems 10 be in
SlDI2LlOI Oh btitb prov iSi ibti tL tiE Sh3NIAl u
ton which vests in the Governor Of the
State she appointment Of officers But
there ia a sDecial provision ot the oonstitu-
tion which gives to the Legislature of tho
State the right to take away the power of
the Governor to appoint officers. not vested
in him BY the constitution.
Then it seems that the law was valid in
assuming to name the persons who shall bo
the returning officers of the State.
,4rF in this f1ln iy1aick
this condition Of facts: That on the twelfth
dav of November the board Of returning
officers met; that ell the members were
present except Thomas G. Anderson; that
thev adjourned to meet on the following
day; that on that day they proceeded 10 and
did declare shat Anderson and PlnchbaGk
were not qualified to sit on the board by
reason Of having been candidates at the
election; that immediately alter this de-
ciaion, Jack Wharton, one of the
defendants, came into the room and pre-
sented a commission for the office Of Secr6-
tary Of State, and exhibited his oath Of Of
fee, that he was thareup0n seated &8
member of the returning board and that
the board as then constituted, consisting OF
The Governor, John Lynch and Jack Whar-
ton, proceeded to and did elect f H. Hatch
and Durant D8P0nte as members Of the re
turning board, 70 Ali the vacancies existing
by reason Of the disqualification Of Ander-
son aud Pinchba0k, and that the board If
constituted and is now entitled to proceed
to canvass the result of tha election
On the other hand, it is insisted by the
State and the persons Joined with the AT
torney General, that when the board met
on the thirteenth day of November, Mr.
Heron was Secretary of State, sat IN the
board as Secretary Of State, and voted in
the board with John Lynch for the election
of James LoDgstreet and Jacob Hawkins to
fill the vacancies aforesaid.
Afidavits have been filed pro and con,
and from these | gather that when the
board met, Mr.. Heron took his seat on the
thirteenth of November, and resolution
eiecting Pinchback and Anderson was
adopted; that Immediately thereafter Jack
Wharton appeared and claimed his seat as
Secretary OF State; that Heron then made
a motion to elect Longstceet and Hawkins
as members, and that he and Lynch voted,
or thought they voted, for that resolution;
and about the same time the Governor
moved for the election OF DaPontG and
Hatch, and he and Wharton voted for that
resolution. or though they voted for it, and
that it as adopted
1t is almost impossible Go tell Che exact
time al which these motions were put. and
the theory ] have formed of the case rem
ders it unnecessary tor me to examine thls
point.
1t seems 70 me that the case 'nuzG turn
upon two questions OF law; first, tile valid
ity Of the commission to Wharton as Srcre-
tary OF State secondly, upon the validity
Of The acts Of Heron or Wharton. claiming z
! each 10 be de faoto Secretary OF State.
There is no longer any question in the
F! State Of Louisiana about the fact that the
Governor has no power to remove any man
! from Office unless the laws of this State
have explicitly vested in him that power in
! thn sneciEn insta-,cn IN rzhinh he attemnts