New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-12-06

The only authority to appoint springs
from the character as Offices Of the posi-
tons in question We deny that mem
bers Of tie returning board are in any
sense Of the term officers, and in this
view we are sustained by the leading coun-
sci in the pending case in the United
States Circuit Court who had occasion to,
examine the question with much care, as
he deemed it vital to the rights Of the
litigants to know whether members Of the
returning board are officers or not. AS
this argument has been characterized by
the Times as conclusive and unanswer-
able" we may be permitted to quote it
against its rather fulsome admirero The
learned counselor said:
"The Supreme Court defines an Office to
be the permanent discharge Of public
duties. The office Of member Of the re-
turning boards is not permanent, because
at the last election each member was re.
CURED to take a separate OATH and the in
diyidual constitution Of the board changes
with the incnmbency Of the Office Of Gov
ernor, Lieutenant Governor and Secretary
of State. The board exists only until the
vote is compiled, and then aS once be-
comes fumctus Cficio, to be recreated only
at the next election There are
no emoluments involved. The men,
bers are simply special commissioners,
appointed to discharge a SiaGle
function, with conditional quasi judi
cial powers. Their action is not finallty,
their decision being AMPLY prima facie
case for those in whose favor it goes, but
liable to be set aside either by the courts,
after due proceedings had, or by the Legis-
lature in its capacity Of ultimate judge Of
the election. The position Of member Of
the returningl board thus having been
illustrated not to be an Office, neither is it
franchise. In the case of Noise, Attor-
ney General, the Supreme Court Of this
State considered a member Of returning
| board neither an officer nor the holder OF
franchise, but simply a special commits
sioner,"
There can be no doubt as to the sound
| ness Of this definition, whatever defect
may be in the application which the
learned counselor sought to make Of it in
the case he was arguing. Under the law
| Of 1870 these commissioners were named
by the Legislature III the act creating
them, and provision was made for filling
vacancies different from that which was
made by the law of 1868 for filling vacan-
! cies in office. It is the rule for the Cow
ernor to issue commissions, either Of cleo
ton or appointment, to all officers except
Governor and police jurors. But in the
case of member Of the returning board
no such commission is required. For the
board. whether such as created by the law
of 1870 or the act of 1872, is merely COM
mittee the. one appointed by the General
Assembly and the other to be appointed
BY the Senate The Governor has no
more % do with the appointment Of the
members under either law, than he has
with the appointment Of a Senate or joint
committee on credentials In each case
the Legislature was careful to take from
the Governor tile power Of appointment,
either originally or to fill vacancies.
But if these members Of the returning
board are really officers, which We join
the learned counselor, quoted above in
most emphatically denying, then they are
entitled to that almost universal rule Of
our law which directs officers to hold over
until their successors shall have been duly
elected and qualified. But our view of
the question renders it unnecessary for us
to examine the precise meaning Of the
word vacancy. For we are considering
the manner Of creating commission, or
appointing a committee, which is particu-
Iarly pointed out 10y law, to be, in the first
place by the Senate, and subsequently in
case OF vacancy, by the remaining mem
bers of the board. The law is sufficiently
explicit that the first board shall be ere
ated bv the Senate, and there is no au-
thority anywhere expressed or implied,
for the Governor to interfere i'll the mat
ter. either to fill vacancies or to make
original appoin ments. We regard, there
fore, Nessrs. Isabelle, Wilt, De Ferret,
Taylor and Austin as totally disqualified
and incompetent to make returns Of the
election. They have not been selected for
the very important positions they claim to
occupy, OF which is claimed for. them by
other interested parties. By competent au-
thorify.
They have. it appears BY the published
lists accepted the ''tabulated returns OF
taa clerks Of the Wharton-DaPonter return.
: ug board. and were probably selected for
their well-known adherence 10 the views
and policy Of their predecessors. Prac.
ticaIly, we have been offered ;eiay Of
motive power. but it is the same Old stage
coach which vas ordered 70 halt " Judge
Durel. The p. ssengers are identical, the
driver is the same, and the destination IN
changed. There has been only change
Of asses 70 work IN the harness.