New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-08-03

the governor TO declare suCu AOI1ciluic anu
abandonment in certain cases, and TO re-
move such officers and TO ill the vacancies
50 made by appointment The first Sec
ton of the act declares that if any person
shall assume or pretend to be an officer OF
the State executive. judicial or legislative,
without authority OF an election declared
By the returning board. or without author
itv Of a commission from tie Governor
OF the State, in case the laws require
such officer 10 be commissioned. such per-
son so illegally assuming or pretending to
be a public officer shall be deemed a
usurper. Ii any such usurper shall at
tempt to exercise the functions OF public
officer. AID shall interfere with any public
officer in the discharge OF his duties such
usurper so interfering shall be deemed to
be guilty OF crime, and. upon CONVICTION,
may be fined or imprisoned, at tie dlscre-
ton Of the court. or both.
Section two declares that II any public
officer. whether State, parish or municipal
shall give adhesion to, or in any manner
recognize the authority of any person who
NAV be usurpiDg Pablo office within the
contemplation OF this law. such pubic Of
fcer so giving adhesion to or recognizing
such lsurper shall be deemed 10 nave LOT,
feited and abandoned the public Office held
by him under the constitution. the laws and
the government OF the state.
Whether the penalties as described by
this act can be enforced OK not. 1t IS not
material to determine now. II is sufficient
for the purposes OF this case TO know that
the law forbids persons, occupying the
position aforesaid. from performing any
official ac.. and also prohibits ali officers O:
the State from recognizing them or giving
effect to their acts. whatever is done in
contravention ii a prohibitory law is
void. although the nuliity De not formally
directed" G. C.. art. II. Every official
act of S. N. Morrison and J. w. Pickens is
therefore null and void. if they be in the
category OF persons declared TO be usurpers
in the FIRST section OF act No. j OF 1873.
They do not hold office by virtue OF any
title having coicr of authority. They
claim to nave been elected at the general
election Of November, 1872. They never
were declared elected by the board of re-
turning officers; neither have they been
commissioned. The documents called
| commissions, purporting to have been
issued by Governor Warmth on the
| fourth Of December. 1872, are absolute
utilities, having been issued in violation OF
| law, This we had occasion to decide in the
case of Collin VS.. knoblock, and IN other
cases decided at the late term OF this court
! at New Orleans. We will notice. judi
ciallv, that no one claiming an otfice by
| election IN November, 1872, could have
| been commissioned except by Acting Gov
| ernor Pinch back or by Governor Kellogg,
| inasmuch as Governor Warmoth was sus-
pended by being impoached by the House
of Representatives before the PRONUNCIATION
of the returns of the election by the re-
turning board. and that his trial was dis
| continued, in consequence OF the eEpira-
| ton Of his term OF office.
! These facts form a part Of the history o:
| this State. 1t was impossible, therefore, Tor
| him to have issued commissions while he
was suspended from discharging the duties
| of his Office. Bat it is hardly necessary 70
| consider the commissions. even if they be re-
| garded as commissions. lnasMuch as the law
| No, II declares that no one, by virtue OF an
! election. shall exercise the function OF the
| Office until declared elected hy the return
ing board constituted by law. The OBJ
vious meaning OF the words. III any per-
| son shall assume or pretend TO be an officer
| OF the State, executive, judicial or legIsla-
tive, without authority OF an election de.
clared by the returning board constituted
| by law or without authority OF commls
sion from the Governor OF the State, in case
! the law REQUIRES such officer TO be commls-
sioned," is. that no one shall exercise the
functions of al elective office. by virtue OF
al election. unless he has been declared
elected. according 10 existing laws: and, in
cases where the law requires the offeer TO
be commissioned. unit! such commission
| shall have been issued. In the case OF
| Morrison and Picken. it was necessary that
thav should have been declared eected by
the returning board. and commits
stoned. according to law. Neither
of those prerequisites was done I'D
the case Of Morrison and Pickens
and their acts, in assuming TO act as the
sheriff and clerk of Cadd0 parish after the
PRONUNCIATION OF the law, are in aagra1
violation and cOntraventlon OF the statute
No. IL. Such acts are crimes. under the
provisions OF the statute. and consequently
can have no legal effect: and those. wEo
themselves have violated the law by recog-
nizing such pretended officers mus: suffer
the consequences Of their disobedience.
Is the law constitutional The OBJ
jections urged against the law N argu,
ment were that it Invested vested
rights: tina: It is retroactive and e.
past .facto in rs operations. and that !,
encroaches upon The powers and duties OF
the Judiciary. There is no force IN the OBJ
iections urged. No one has, or ever had
right TO take possession of an Office, except
in the manner and under the CON
ditions stipulated by law. Not hav'
ing been declared elected cy the
officers who's province :: was. under the
law. 70 determine that question
and never having been COMMISSIONED
according TO law Morrison ard Pickens were
asurpers before the passage OF act No. ~
|
nor any other kind of right thereto. as II
does appear tina: they contested the cleo
ton. and they had no title under WHICH
they could have contested for the ONCE
under the intrusion into Office act-thelr
pretended commissions being mere nullltles
Bonner vs.. Lynch. % An. The law Is MOI
retroactive-it professedly provides tor the
future. It can not therefore, be e P1s
fucto. Neither does the statute trench upt
the jurisdiction OF the judiciary. 1t declares
certain acts. which were in themselves
wrong and il violation OF Jaw and civil or
| der before the passage OF statute, to pt
. crimes if done after the passage OF the Jaw
That the subject was one over when the
Legislature had jurisdiction can MOI u
questioned seriously. Il was to punlsf
those who were conspirinS agalns
the government: By preventing 'ne
installation OF its officers Huiy dc
cared to be elected and commissioned
ANY government. which would tan L
do that would be pusillanimous and un-
worthy the Iespec: OF a tree people II Ihe
effect Of the passage OF the statute oe &c
drive those usurpers from the Offices which
they unlawfully retained from ;he iega
officers. the law VIII have accomplished III
object without any violation OF :lgh' o.
! OF the constitution. l, was urged also INA
this law contiicted with the intrusion into
Office &C: and took from the courts cases
that were pending under II. l: IS no. ma
terial to decide whether i. did so Or no.. :ol
the Genera, Assembly has complete power
over the subject OF contests for office. Il
} determines the mode by which those ques
tons may be decided, and the courts have
no jurisdiction over their discretion: Bon
e ner vs. Lynch, Cooley Court. LIN. Ia. !!
was also strenuously argued :hat anti
!, Morrison and Pickens had been prose
cuted and convicted of their crimes. 'n'
| cnr,r,s could MOI cola -erailY aiecI,Ie maj