New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-11-21

! was Gle IaGT0 secretary OF state at the Lin6
| these transactions occurred at the meeting
| on the thirteenth of November. The mere
| issuance of a commission TO q person does
| not constitute him an officer. The doctrine
| of Credence given to acts of de facto officers
! is based on this: that the public has 8 right
| to be secure in the validity of acts of
officers who. under color Of law. exercise
| functions Of office, and have been dealt
| with and trusted by the public. This is the
| only reason given by courts for holding
| valid acts Of persons holding office not de
| jure but de facto, but III order to consider
| an act as an act Of an officer de facto he
must be in the actual discharge Of the Eunc-
tiOns Of his office must be known so by
the public, and must have been dealt with
by tue public IS public officer Og Sunc
ti0nary.
A1r Heron was de facto Secretary Of
State, whether he was so do jure or not on
the whole day of the thirteenth Of NOvem-
Der. 1he statutes sent to me are signed by
+. J. Heron, Secretary of State. All the
people have dealt with Heron as Secretary
Of State; and up to that hour, on the thir-
teenth day Of November, there was not,
perhaps, another person, beside the Gov
ern0r in the State who did noe believe
Heron to be Secretary of State, and who
would not have dealt with him as Secretary
Of State II he had had business with that
Office. The constitution, in article 122 de-
clares: That all officers shall remain in the
discharge of the duties of their respective
offices until their successors have been
lnducted into Office except in cases OF
impeachment or suspension. There ia
no eyideace to show THAI Wharton
had been inducted into Office, and but one
moment before, in the vote taken, MIR. Her
ron had been recognized by the executive
as Secretary Of State, and Heron had been
sworn in as q member of the returning
board by the Chief Justice in the presence
Of the Governor. and without any obieo
ton on his part, although it must have been
the fact that at the time the Governor per-
mitted the Chief Justice to swear him in he
had issued a commission to Wharton as
Secretary Of State, but he still recognized
Heron as the de facto otfcer-and he was
the de facto officer until person gets a
commission and comes in contact with the
public. His acts are entitled to no credence
and receive no validity from the fact that
he has a commission in his pocket
therefore consider that, even admitting
the commission issued to Wharton is valid
which do not, Heron was dc factO acting
as Secretary OF State, and that his VOTE
with Mr. LEnch's vote, elected those officers
to the board.
But much has been said at bar in regard
to tho acte Of the executive in his
efforts TO defeat the will Of the majority
of the returning board as constituted
on the thirteenth OF November, and
his acts have been SO frequently de-
signated as % brilliant coup d'GtGt. that
feel called upon to say that the
coup d'etat is nOtan American institution; it
belongs to another country, where they have
barlicadee, and where they meet to 0rgan-
ize governments az midnight. Our Anglo
Saxon liberty proceeds under processes of
law, and an individual has no power to
change the government of the p8oplethat
is done by conventions of the people, and
the laws are enacted by Legislatures elect
cd by the people, and that in daylight, and
their proceedings are published to the
world. and no person however great his
power, or however pure his motives. has the
power to change the nature OF our govern
ment or change the progress OF it's history,
or 20 defeat the viii OF the people es ex-
pressed in their laws.
1t was the desire Of She Legislature when
il enacted the election law, that the board
OF returning officers should consist OF Ger
tain persons, ana care was taken to select
persons representing both political parties,
and it was without the power Of the exeCU-
tive to defeat this wilt.
I conclude that the courS has jurisdiction
90 try this case Under the intrusion in office
act, and that the returning officers are off
GERS within the mea ming OF that act I hold
that Heron is sti!l Secretary of State: shat
his vote on the thirteenth of November de.
termined the election Of Longstrees and
Hawkins to tie. board; that at all events,
whether he was Secretary OF State de jure
or not. he was so de tacto, and that by his
vote l0ngstreet and Hawkins were selected
as members of the board. An Injunction
may properly issue as supplemental pro
ceeding TO q anis under the intrusion in OF
fee act. Gbc ohjecs is to decide who is en-
titled to exercise the duties and functions
of the Office. The duties Of the returning
board are soon completed, and if pending
the issue the defendants attempt that which
renders the suit imperative. the cours may
properly i3sue its restraining order.
From these considerations the rule nisi
will be made absolute. snd the injunction
issued as praye" Ser.