New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-01-21
THE COURTS.
United states District Court.

- -
printed brief.
On motion of J. X. Beckwith, Unitet
States Attorney, it is ordered that a sub
pena 9uceS tecunl issue directed to NJ.
Bigney, editor of the newspaper published
in the city OF New Orleans called the New
Orleans Times, commanding him TO forth
with be and appear before the grand Jury
now in session; and that he do bring witt
him and produce true and complete ILL
eff the daily newspaper issued under salt
title, between the fifteenth day OF NoVem
Der, 1872 and the thirtieth day of Decem
Der. 1872 in order that the same NAV b'
submitted and considered as evidenced.
The grand jury returned the following
findings:
United States vs. James Buchanan. In
dictment: Eembezzling letter, stealing
bank bill therefrom, etc. a true bill.
United States VS.. Sino Bejandio. fndict
Snent: For passing as true counterfeit
five cent piece. A true bill.
United States VS.. Sino Bejahdio and
Joseph Pougoude. Indictment: For coun'
terfeiting, etc.s i've cent pieces. q true
bill.
Supreme Court.
ii Til fe was Il fttli bench in the Supreme
Court Yesterday, and the bar was well rep
resented. the expectation being that the
celebrated returning board case would De
decided to-day. 1t appears that the decl-
sion is not vet ready to be pronounced, and
only two decisions we're gwen.
Nv Associate Justice WHY:
Moses Marx vs. National Marine and Fire
Insurance Company.-Appeal from Fifth
District Court, parish OF Orleans. Judg-
ment in favor Of plaintiff in the sum Of
S2232.
By Associate Justice Howell:
Heirs of John Shdell VS.. Joseph Bou-
gere.-Appeal from Fourth District Court,
81 nr1napc Ind omeDt affirmed
Superior District Court.
The proceedings taken on behalf OF T. I'll.
Morgan against John II. kennard for the
possession of the office of Associate Justice
of the Supreme Court Of the State, came
up for trial yesterday.
The defendant, through his counsel
Semmes g. Mott and Howe q Prentiss,
fled supplemental answer. praying for
trial by jury.
The court refused to grant the prayer for
Jury for the reasons given in overruling the
exceptions on Saturday, when the court de-
clared its opinion that the law was consti-
SutiOntl.
On behalf of Judge Morgan, MS counsel,
~. II. Hunt, Esq, then introduced the
commission of Judge Morgan, dated Jan
uary 4, 1873, the action of the Senate con-
firming him, the list of Senators composing
che Senate on the fourth of January, when
sons elected to the Senate and elected judges
of the district courts, the record of the
suit of the returning boards, now on ap.
peal in the Supreme Court; the Droclama.
zion of Governor Warmoth for an extra
session of the Legislature, and proof that
she extra session of the Legislature was
continued to the sixth of January, 1873.
On behalf of Judge Kennard. his counsel
sherely offered the commission. dated De.
mber 3, 1872. and oath OF office Of J. u.
kenrard.
After hearing argument Of counsel. Judge
Hawkins said:
The constitutional questions presented by
che answer and amended answer have been
considered by the court in passing upon the
exceptions fled at the incipie ICY of the
trial AMI the court will therefore not re.
Tiew those questions. They are considered
as settled The constitutiOnality of the Jaw
has been sustained. There then seems TO
Ge nothing but she examination of the
effect of the commissions presented by :he
plaintiff and defendant in this.caseo
The defendant shows q commission cegu.
Ear in form and emanating from competent
authority, to hold the Office of associate
justice of the Supreme Court. The plain
tif also shows commission of similar aus
shority, of subsequent date for the same
office, which, on It's face. shows that u has
had the concurrence of the Senate of the
mission of the defendant. seems 70 !acko
In the case of Dubuc VS.. Eose. reported
In the NineteenthAnnual, the Supreme Court
held that where two commissions for the
same Office were presented, both regular in
sorm, the last commission would prevail.
because it carried with it the presumption
chat the person holding the oldest commits.
sion had been regularly removed. There is
geally nothing else in the case but the two
commissions. There is nothing presented
by the defense that would raise the Ques-
zion of the validity of plaintiffs commits.
sion; and there is nothing shown by the
plaintiff to prove that the commission of
Che defendant is Objectionable in any man
ger. That decision of the Supreme Court
would SEEM te control the DECISION !n this
case
The question raised by the defendant.
.hat under the commission which he holds.
and under which he has occupied she office,
his term of office was fixed by the cOnsttu-
eiOn of the State, would seem to meet some
consideration. Article sixty-four of the
constitution provides where a commission
has issued to an officer TO supply vacancy
which has occurred in an office during the
recess of the Senate, that his commission
shall continue to the end of the next ses.
sion of the General Assembly. 1t can
scarcely be seriously commended that this
siyes term of office.
In this case the term of Office is fixed by
she constitution. The constitution saws
that the judges of the Supreme Court shall
hold their Offices eight years. That is the
term of their offices. If vacancy happens
from any cause, that vacancy in the incum-
bent of the office may be filed in the same
manner that the office was filed in the first
instance-by appointment by the executive,
by and with the advice and consent of the
Senate, and the person who takes the office
falya - Il,
:erm fixed by the law, or by the constiru-
Sion. But in order that no interregnum
may ensue. the constitution says that the |
vacancy may be supplied by appoint |
snent of the executive, and the person
SO appointed holds the office until the SEN
ate is in session and concurs with the ex. |
ecutlve in filling the vacancy : and that is |
matter which must be known TO everybody |
who accepts an office. He accepts it with |
She contingency that the Senate may reject |
him and 1t is within the power of the eX |
ecutive TO consider that the term is closed |
%hen the Senate meets, and he makes the |
appointment then which can he made only |
with the concurrence of the Senate. Sup |
pose that Judge Kennard had been sent as |
a nominee to the Senate. and had been re
jected, could it then be maintained that be
sVould continue in office to the end of |
the session of the General Assembly |
If it could, then that would determine |
whether his term was fixed to the end of |
the session. But he had no term except
the term fixed 10y law, and that was TO the
end Of the regular term of the Judge in
whose place he was appointed. That is the
only term he could have. No intermediate
regulation could have any effect in chang
ing that term. But he could not continue
unless he had been appointed in the manner
provided by the constitution. which could
only be by and with the concurrence of the
Senate; Clearly, if the executive had not