New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-01-24

will be given or that none are Sttacheu 10
the Office In this case the contrary appears
to be true, and it comes clearly within she
above definition.
II was also commended, somewhat vaguely
j, i trus. that the matters at issue are not
nroperly questions TO be determined by the
Judiciary. We have heard no good reason
to sustain this proposition, nor can we i'm
agine any. 1t is not and can not be denied
that we have a constitution, and laws made
in conformity thereto, in this State; and 1t
is the province of courts to decide on the
rights which conflicting parties can legally
set up under them. constitutions and
laws precede the Judiciary, and We act only
under and after them, and as to disputed
rights beneath them, rather than disputed
points in making Them
W hen claims of individuals GENE il con
hict under them. it is the true province OF
the judiciary to decide what they rightfully
are under such constitution and laws
rather than to decide whether those consti-
tutions and laws have been righttully or
wisely made. How. % Two sets OF in
dividuals claim to be the legal board of
returning officers. 1t is difficult to conceive
why this is not a judicial question. 1t Is
the province OF courts to say what the law
is-juS discre. Because the law makes
it the duty of the Governor to open,
in the presence of the said return
ing officers, the statements of the
supervisors of registration, it can not be
inferred, as counsel intimate. that he is
vested with the extraordinry discretion to
determine who are the returning officers
under the law. No such power or discre-
ton is conferred on him.
The next objection is that the law signed
bv the Governor on November 20, 1872,
relative to elections, repealed the election
law of 1870, which created the board OF
returning officers, and thereby destroyed
their Office.
If this were So the action of the judge of
the Eighth District Court in granting
new trial and subsequently dissUlving the
injunction and dismissing the suit, were
utilities, for want of parties to stand in
Judgment. But we ars clearly of opinion
that no such effect followed the passage of
the said act. Both laws were enacted to
regulate elections in this State; the one of
the later date is but revision and re-
enactment of the former, with such emend-
ations as were deemed necessary. The
new law, it ID true, contains repeating
clause, but it could not have been the in
tentiOn OF the legislators to repeal or de-
stroy what they had carefully guarded in
the new law. The office OF the board OF
returning officers is not abolished, but is
preserved in the act signed on November
20, 1877. The mode of filling the OF
fee alone i. changed. Under article one
hundred and twenty-five OF the constitution
the old members continued IN office to dis
charge the duties imposed on them by the
law until their successors were indicted
into office; and by the election law they were
to continue in session until the returns are
completed. Such is the doctrine enuncia-
ted in State ex rel. Holmes vs. Wilt, Ii A,
439; State VS.. Kreider, q A, 482, and State
vs. Brewer, y A, 273. Its very clear that
the provisions of the act of 1872 were in
tended to apply only to elections held I'M
der it after its passage, and by no correct
or admissible Tule OF construction can Its
repeating clause be held to defeat an cleo
ton had under the previous law, and the
results thereof not yet ascertained. 1t
would be worse than trltiing with the right
of suffrage thus to change laws regulating
elections. The difficulty Is not remedied by
the theory suggested by counsel that after
the approval of the new statute the Gov
ernOr &c ueceSsitGte rel must or could ap-
point . new board to complete what, by his
own act, the former board was rendered
powerless to complete. Such necessity
could moi be created by him fog such pun
pose. Ii is in consistent with and opposed
to our republican system OF government.
The Governor 10 not vested by the new
law with authority to appoint the returning
officers. They are to be elected by the Sen
ate, and the Senate, as elected, had TO be
organized before it could elect, aud its or
ganization depended on the result OF the
said election.
On the merits .; this ease there 10 NO &C.
rious difficulty.
By the act No 100 OF 1870, under which
the election was held or the fourth of No
yember, 1872, the Governor, the Lieutenant
Governor, the Secretary Of State and John
Lynch and Il. G.. Anderson, or a majority of
them, were the returning officers of said
election, and q majority of such majority
constituted quorum. Two OF them,
the Lieutenant Governor and L. &. Ander-
son, were disqualified from acting because
OF being candidates. These officers were
required to meet within ten days after the
election TO canvass and compile the state
mentS Of votes made by the supervisors of
registration, and make returns Of the cleo
ton to the Secretary of State, and 10 con-
ti,lue in session until the returns are com.
pleted -Four of them, the Governor. Lieu
tenant Governor, the Secretary OF State
and John Lynch, met on the twelfth of No
yember, and after selecting Governor Ii. G.
Warmoth president and John Lynch score
tarv of the board. and discussing the ques-
ton of the disqualification OF two members,
adjourned to meet on the next day. Ehe
minutes of these two meetings, as kept by
the president and by the secretary Of the
board, are in the record, and they sub
stantially correspond, up to a certain point
of the proceedings, ON the second day. We
will adopt the minutes signed by H. 4.
Warmoth up to that point, to wit:
1.-The board met at eleven o clock Suesday,
November IL. 1879, Ut the Governors psrloE
in the State House.
Present-Messrs. SVarmotif, Governor;
Pinchback, Lieutenant Governor; Herron.
Secretary Of STATE, and John Lynch.
Mr.. Heron raised tho question % the
e hnn md
Anderson to act as members OF the board.
Mr.. Warmoth asked for time to examine
the question. and fer the presence Of Mr.
Anderson.
After much debate the board adjourned
to meet at II NJ. November l3, ct the Coy
ernOr's office
At y NJ. the ,oar,! Inc. pWrsuans to Al
ournment
Present-HIessrs Narnoth. lynch. I'iac!.-
back and Heron.
Chief Justice Ludeling appeared to swear
in the members of the board, and each took
tue oath, with the exception OF Mr.. Pinch
back.
On motion of Mr. lynch, it was ordered
that, by reason OF ineligibllity Messrs.
Pinchback and Anderson be not permitted
to act as mem bers of the board
Mr.. Pinchback asked the opinion q! the
Chief Justice, who took the same view.
Mr.. Pinchback acQuiesced il the sctiou 81
the board and withdrew.
Mr. Jack Wharton then appeared and
| presented a commission from the GOSernOr,
| as Secretary OF State, exhibited his oath a..
| Secretary of State" etc
| Just here the difference ia the tws ac-
counts of the proceedings begins. war
moth states that Wharton exhibited his
| oath as . member of the board and took
his seat; that +. FL. Hatch and Daronte
] were elected by the vote. of himself and
Wharton Lynch not vofing} to fill the va
; cancies; that Hatch ana DaPonte were
then sworn by Judge Cooley, and took
| their seats: that at this point General Her