New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-01-15

THE CNIRTs.
Supreme Court of Lonisiana-The Return
ing Board Controversy.

the Supreme Court, before full bench
In answer to an interrogatory from Mr.
Howe, Chief Justice Ludeling stated that
this was case of great public Importance,
involving the claims TO office OF two sets OF
officers, from the Governor down, and in
volving questions which, if net speedily set
tied, may result in civil war, and it would
seem to be shrinking from duty not TO dis
pose of the case at as early day as poss8
bic.
Mr.. Semmes was opposed TO fixing the
case for trial and opening the same Tor DIS
cussiCn to-day, because such proceeding
was not provided for IL the Sules governing
this court.
The Chief Justic. replied that the AttOr-
ney General had conceded the right OF the
court to make such rules as 10 saw flta ana
he car not but admit, therefore. the rIghs
of the court to SET aside those rules. or to
make an exception thereto when u became
necessary, as IL had been cone before III
other cases % greas moment. IL was q
right that belonged 10 al courts II them
selves, and he could see 10 reason why an
exception should be made III this case.
Mr. Semmes, s.nce this question had been
disposed of. had no further objection 20
urge, but asked 70 be allowed until this
morning 10 prepare his answer to the argu-
! ment OF the attorney on the other side.
Mr.. Fellows then proceeded 10 argue the
cast. in behalf Of the Attorney General. He
| said: In attempting to present the question
involved in the controversy before your
| honors, | feel the grave responsibility resi-
| ing upon every one connected with tins
| cause, on account Of the results of the trial.
| Were the results Of an ordinary character.
| there would be no hesitation on the part OF
any one The facts are simple questions OF
! law, and are few and easily disposed OF.
| There are preliminary matters first TO be
| disposed of. There is point made as to
| the legality OF the present Superior Court,
| and another as TO 10 the right OF the Attor-
ney General 10 appear in the suit. We
| are willing to submit these points, and the
papers now before the Court.
| This case has come up on an appea! from
a Judgment signed by the judge Of She
| Fourth District Court. 1t is d sui ot par'
| ties alleged TO be returning officers under
| the election law of the State Of 1870. against
other parties claiming TO exercise the came
| functions. An injunction was prayed Tor
! in the Eighth District Court, restraining
respondents from acting; rule niSi was
heard, evidence taken, the rule a.iSi was
made absolute and the injunction issued
Then follows rule for new trial, ordered
| by a new party who claimed to be judge OF
| the court, who permitted the rule to be
made for new trial after the order OF has
predecessor had been signed and promul-
| gated On the new trial being granted, for
| reasons made evident in the record, the IN
| junction was ordered 20 be dismissed and
suit dismissed without any hearing what.
| ever. 1t was alleged that she law of 1870
| had been superseded by a new law recent
| ly approved by the Governor OF the state.
and the board appointed oheTeHEdeS nae
ceased to exist.
That court wa. shortly succeeded by
| the Superior District Court. the judge 81
which Reused himself: another judge
signed the judgment, and the appeal was
| granted.
Has the election Jaw Of 1870 ever been
| repealed! u is claimed ina. it las been by
an act promulgated on the twentieth 'i
November. 1872. A: che :ime that ac: Of
the Legislature was promulgated. could
the Governor. bv signing i. give 1t the
| character of a law Clearly. during a re-
cess Of the General Assembly, he can pro.
mitigate law Of that body; but in this case
| the term of the General Assembly had eL-
| pired, and with it had expired all Of It's up.
| finished legislation. When the Legislature
| ceases to exist. the Governor ceases 10
| have any power o"e; she leg station OF that
body. On the fourth day o. November q
new body o. men aa.. ceei. invested with
| legislative functions. An unsigned act
could be approved al! promulgated Up 30
the day Of election. but not stterward.
| But granting that .le Governor had 'hat
| right. and in pursuance thereof did prOmul
| gate the new election ..w. did Il repeal tte
| law of 1870. or did i .imp'. revise it, II
certainly did not repeal the board of re-
| turning officers. .. LIyest them 81 thelg
| functions; j: only changed che method OF
1 selecting them. Tie act Of 1872 was simply
a revision or !e-eraceIaent OF the cd law,
. with very few changes. The first section o.
! both laws is identical; the second section o.
| the new law is almost the same as section
! afty-foUr. and section th.G. with section
fftv-tive OF tie law Of 1870; The fourth sec
| ton cs the &c. Of So j. the same as the SEES.
opd section of the act Of 1879. and thus they
! follow along, with very 'i-.le difference be-
tween them. The section providing Tor q
| returning board :. 30: 2 "asnse 9; office
but Of officers.
; Il is claimed tta. the returning beard o.!
1870 ceased 20 .xis: by reason @! the ap.
| prevail of the act OF 49,. Butt: IS declared
| that where The .tfeC. 0. law Is 10 produce
| confusion and anarchy. The cour. Will 60 be
| hind the !aW-will examine the Jaw stsel.
| as 20 it. purpose and intent.
The law OF ST. says the returning board
will furnish the clerks Of boyh houses of the
| General Assembly with a list o. the mem.
bers thereof, upon the basis Of which the
| Legislature shall be organized. Il IS well
| known that on account of death there had
ceased to be quorum in the Senate OF the
State. Hence there could be 10 Senate till
the returns were made, and no returns
could be made until the Senate had elected
returning officers. This would produce an
absolute interregnum, from which there
is no escape and for which there Is no rem
edy. 1t was clearly not the intention of the
| Legislature Of 1872 70 hold an election nm
der the old law and make the returns under
the new one. Article l22 OF the cOnstltu-
tuition of the State requires that all officers
shall continue TO perform the functions OF
the offices held by them until their success
sOrs are indicted into Office
| Hence il was necessary Tor the returnln
officers designated in the act OF 1870 to 60
on and act, and canvass the returns IN the
same manner as is provided by both laws.
Now, passing by these preliminary ques-
tons, which was the legal returning board
the board competent to make up the re-
| turns and decide who is elected in LOuisi-
ana! Fortunate it is that your honors are
| outside of the influences of that election:
that your term extends four years longer.
If your offices had been in question III this
contest, no power short of the national GOV
| eminent could have !eestab lshed order n
our midst.
The law provides that the Governor,
| Lieutenant Governor, Secretary of State
| and Messrs. John Lynch and Thomas G.
Anderson, or a majority Of them. shall com
| prise the returning board. But at the last
election two of these were disqualified
from acting, they being candidates for
office and it devolved upon a majority oI
the whole board remaining TO III! the vacan-
cies. The Secretary of State had been.
meantime, suspended, as You have since
determined. arbitrarily and illegally.
There was no one in the Secretary's way.
The office was filed by f. J. Heron as
| acting Secretary of State, by the Governor.
| and he was recognized as authorized TO act.
and was. with Mr.. Lynch. introduced to
YOU. Mr. Chief Justice. as !. men Der oi the
! returning board and competent to Ge