New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-01-19

functionary. Mr.. Heron was de facto SEQ
rotary of State, whether he was so de jure
or not on the whole day of the thirteenth
of November. The statutes sent to me are
signed by F. j. Heron, Secretary of State.
The people have dealt with Heron as SEQ
rotary Of State, and up to that hour, on the
thirteenth day of November, there is not
perhaps, another person, beside the Gey-
ernor, in the State who did not believe Her
ron to be Secretary of State, and who would
not have dealt with him as Secretary Oh STATE
if ne had had business with that othce. L ne
constitution, in article l22, declares THAT
all officers shall remain in the discharge OF
the duties of their respective offices until
their successors have been indicted into
office, except in cases of impeachment or
suspension" There is no evidence to show
that Wharton had been indicted into othce,
and but one moment before IN the vote
taken, Mr.. Heron had been recognized by
the executive as Secretary of State, and
Heron had been sworn in as member or
the returning board by the Chief Justice in
the presence of the Governor, and without
any objection on his part, although it must
have been the fact that at the time the
Governor permitted the Chief Justice to
swear him in, he had issued commission
to Wharton as Secretary of State; but he
still recognized Heron ss the dc facto
officer.
Until a 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 he has commission
in his pocket.
therefore conclude from the considera-
ton of the point of law suggested in this
opinion that the organization of the board
consisting of Governor WarmOth, Mr.. Her
ron, Mr.. Longstreet, Mr.. Lynch and MI
Hawkins, constitute the returning board OF
elections, and that therefore upon the petl-
ton of the State under the intrusion in
office act, and upon the allegation that GER
tain other persons were assuming TO DIS
charge those high public functions, and
that their acts were calculated to render it
impossible to execute the judgment that
might be rendered in the case, conclude
that the injunction upon the supplemental
petition was properly issued, and ought
to be main tanned until the final determine
ton of this controversy.
1t is a part of the history of Louisiana
that subsequent to the rendition OF that
Judgment by the court below the Governor
of the State signed q bill then in his posses
sion for the evident purpose Of ousting the
board so recognized by the court below;
and that he then, before the returns of the
election were made, proceeded to commits
sion certain judicial officers and to forcibly
install them, notwithstanding the fact that
the results Of the election had not yet been
ascertained by the board recognized by the
only court to which application could be
made in the State. And this leads me to
the consideration of the second question
involved in this case.
urge that the signing Of the new cleo
ton law of November 20, 1872, did not in
terfere with the returning board joined with
tba Not in tbia and rnpnpOIZpH in the
opinion rendered upon the rule nisi on the
application for an injunction. new point
of constitutional law has been presented to
the court in the course of this argument-a
point that has never yet been passed upon
a point which, when first suggested to me,
secuted, but upon reflection and upon ex-
animation / became satisfied that 1t mer1ted
serious consideration from this court.
believe that the Governor Of the State has
no power under the constitution to sign
bill after the General Assembly which
passed it has ceased to exist. The consti-
buttons of the American States are to be
the courts have said, as statutes
are construed. One of the rules of con-
struction is that you should consider the
state of things existing at the time of the
enactment of the law. So, in Interpreting
these constitutions adopted by the various
in America, courts must
bu6 HhlbbtuR raw AhuoO
consider the nature of the English govern
nent; must consider those fundamental
IDEAS which underlie the process of Anglo
Saxon liberty. At the time the American
constitution was adopted, Parliament had
assumed the exclusive power of making
laws; the consent of the King was even
then only form; and IN Great Britain to-
day the King can not refuse consent to an
act of the Commons.
The doctrine of consent underlies this
process of making laws under the American
system OF government. Now, / say that
there can be no consent between two per
sons when one of them is dead. When the
Legislature passes out of existence, the
Governor Can not give his consent to their
acts Such an instrument is not leglsla-
Iation. Unlike all the other officers of this
State, the members of the Legislature do
not hold over until their successors are
qualified and indicted into Office. They
cease to have legislative authority on the
first Monday of November. Every second
year. until the persons who may have been
elected at the general election then to be
holden, have been assembled and have
been organized, there is an hiatus in the
legislative branch of the government. The
provides that when o bill has
been passed by both houses of the General
Assembly under certain formalities, it shall
be presented to the Governor of the State,
and he has five days during which to con
slider whether he will sign it or veto at. If
he determines to veto it, he must send it
back to the General Assembly within five
aays, unless they adjourn and prevent his
sending it back. 1t is then provided that
ne shall send it back at tho next meeting of
she General Assembly. Now ! urge
hat considering the nature of our
Anglo Saxon governments, considering
ihe principles which underlie those
provisions, considering the
history of the formation of these eonstitu-
ions and of the federal constitutional urge
hat there must be consent between two
departments of the government or there can
30 no valid enactment of a law. unless the
legislative department shall determine chat
{ will pass the law notwithstanding the OBJ
ections that may have been made by the
)ther branch. 1t may not be improper for
no to say that one Of the most distinguished
members OF the bar of Louisiana, and one
If the most eminent jurists in our land. Mr.
Christian Roselius. after careful eXanina'
ion OF this question. wien presented ."
i'm. gave it as his deliberate opinion that
he Governor of the State had no power.
Inder our constitution, 30 sign a bill after
he death of the Legislature which passed
t. ] submit these suggestions to the Sc
ious consideration OF the cOurto The cOuct
las never passed upon the question in any
f the decisions rendered under this consti-
ution. In the Pagan ease it was decided
hat the Governor could sign a bill after
he adjournment .t the Legislature. OF
which There Is no doubt: but the act in
uestion in that case was signed before the
which passed it had ceased to
xist andes ,he provisions al the sonstit1-
ion.
But, nag 80 please the court. ;f the Bill
id become law. submit that it did
OF abolish the returning board which was
rganizets and recognized by the decision
+ the count below in issuing the Injunction
o which | have called the attention of
our houors. The Interpretation of the re