New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-02-11

The national executive had recognized
tho State government, and the army OF the
|. United States or a sufficient traction there-
of il kent in readiness TO enforce lhat
recognition. Under the constitution dp"
Laws Of the United States, the executive Is
cbaroed with the execution o. the laws OF
tbe Union, the suppression Of rebelilnnS
insurrectious etc. Thus we see that Con
press has not only given HIM the power TO
declare which body or assembly constitutes
the State government in cases of dispute or
conflict, but the highest judicial tribunal IN
the land has repeatedly held that the JUDI
ciarv can not take cOguiZance of such queS-
tions. To resist. then, would amount to a
rebellion against the well-estahlishe! au-
thority of the general government. Lex
non cOgt Gd nnpoSSlbthd.
Having stricken out four out OF hVe Oh
the reasons assigned by counsel Tor the
reasons above given. the only question re
naming for consideration Is as to the con,
stitutionality OF act No. : OF the IeneI" l
Assembly, approved December | 1872,
creative Of the Superior Court in this city
| and defining its jurisdiction.
Article seventy-three OF the State constr
tuition declares that 1.-The judicial power
shall be vested in Supreme Court, III dis
| tIict courts, in parish courts, aud IN justices
of the peace" Article eightY-three says
that until otherwise provided. there shall
be seven district courts tor the parish OF
| Orleans, with the following original Jurls-
| diction: The First, exclusive criminal Juris-
| diction; the Second, exclusive probate JuIls
dictiOn; the Third, exclusive jurisdiction OF
appeals from justices OF the peace; the
Fourth, Fifth, Sixth and Seventh District
Courts. exclusive jurisdiction in all clVll
cases, except probate. when the sum IN con-
test is above 500. exclusive OF interest.
These seven courts shall! also have such
further jurisdiction, not inconsistent here
with, rs shall be conferred by law"
Article eighty-tOur provides that Judges
Of the district cOurts shall hols thelr once
for the term o. fOtII years
Article cighty-One says: The judges OF
al! courts shall be liable to impeachment
for crimes and inisdemeanors." For any
reasonable cause the Governor shall re-
move any OF them. on the address OF two
thirds OF the members elected to each house:
of the General Assembly article lO6. In
every such ease the cause or causes TOR
which removal may be required. shall be
stated a. length in the address and IN
serted in the journal of each house. Ar
ticle 100 provides that 1.-THE General Assem-
bly, may determine the mode of filing va
eancies in al! Offices for which provision Is
made in this constitution.
Article sXty-One provides that 'the Gov
ernor shall have power 10 NIL vacancies
that may happen during the recess OF the
Senate etc. Article sixty says: ''He shall
nominate. and by and with the consent OF
the Senate. appoint all officers whose
offices are established by the constitution,
and whose appointments are not herein
otherwise provided for: provided, however,
that the General Assembly thall have a
right 20 prescribe the mode of appointment
~ al. other offices established by law.
From these quotations tia court deducts
the following truisms:
|. There can be no Judges hu. Supreme
Court. district court and parish court
judges. ana justices oi the peace; ART. con
stitUtiOn 49,
:. "Distric. court Judges are elected. and
shall hold their offices for four years art
81: Unless death intervene. or they refuse
or neglect TO act, or resign: or unless the
be imbeached. or addressed ont o. Office By
two thirds of the members elected So each
house of the General Assembly," Art, 81!
1. All Judges are constitutional Off
GERS tarticle ~. Though the General As
semblv may establish as many district
courts az the public interest may require
Article IS.
>, The constitution mentions the causes
for which thev may be removed from
| office tarticle 81. and they caDno. be re-
| moved .or any other. Unless by usarpat!on
of power.
Tn. Supreme Court has held that the ex
! ecutive can not vacate an Office. See III.
| case of the State On the relation of the A.
| torney General and an the information O'
! the returning officers Of election vs.. Jack
| Wharton ct ais, reported in the New Or
! lean. REPUBLICAN of :he ,wertr-tourth ~
, limo. where Judge Howell, acting "a til.
| organ of the court, said: "Herron was Tho
| acting Secretary OF State about the sec0nt
! of December, 4. y. 1872. and Il WAS no: ii
! the power o; the Governor 70 remove him.
| lr the case OF Downes vs.. Town. 20 an.
! jqt the court said: We are Of opinion that
| the Governor could no: legally and cOns'i
| tu.ionaliy appOiu: She defendant, /. y
| Towne, 20 the office OF parish ;Gdge unit
! the incumhent, Richard Charles DoNues
| was removed by Impeachment or address
of the Legislature. or ANU. hi. disquaiticr
| ton wa. determined by the court" Il l.
! fair 20 presume that the power OF III" Gov
| ernor IN the premises ~ Cn9XtenS'Ne wit
, tina. OF 'he Legislature. II would follow
! then. that tho latter could not yacate AZ
office of judge, without Impeachment or adj
| dress Of the Legislator" III The manner point
ed out by the constitution. tAltc!es 81 an.
! 1861
! Such seern. 20 have been the opinion %:
! the cOuEt in the ease last referred to, for !:
| say., without a dis -entipg opinion: 1T va
not in the power OF the Legislature to legis
| late him Downes; out of Office. or 20 di
| finnish or increase bis term of office. a,
| fixed in the constitution" Chief Justice
! Ludeing. in pronOuncinG the opinion
! OF the court eighteen months later
, to wit, IN December, 1871, il
| the case OF the State on the relc
| ton of Y. &. Robinson vs.. Charles K
| DraAguet, repeats the above quoted dictnm
! and adds. % An. y. 80: 1.-The precise
! question was decided against the preten
! sions OF the Defendant in that case tease o
! State e. re- Towne Va Downest and tint
! and reflection have ONLY strengthened Ou
I, conviction then expressed"
Under our Theory of government. III