New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-01-24

stitution and laws of the State, tie Govern
or was wholly without legal authority to
suspend. remove or appoint said officer. The
extrusiOn and exclusion of Bovee from the
office by the Governor did not and could
not vest in the Governor the control of the
office, with the right to put in and put out
the occupants thereof at his pleasure. Ills
attempted appointment of Wharton was an
absolute nullltys and gave Wharton no
color OF authority to act either as Secretary
of State or member of the board of return
ing officers. Owing to the manner in which
the case Of the State ex rel. BOvee VS.. Her
ron, decided finally about the time of the
events above narrated, was managed, there
was q final Judgment of court of COM
petent jurisdiction decreeing the suspen-
sion OF BOvee as Secretary of State
and appointment of Heron se dis
charge the duties thereof, to be legal;
and che effect of thar Judgment
continued until the decision by this
court (about the second Of December, 1922,
just referred to. Hence as to the world,
Heron was the acting Secretary of State
at the above date, aud it was not IN the
power of the Governor to remove hlm-the
Governor having no control of said office.
There Was no vacancy in the office, Boyee
being only suspended or excluded. ana yet
the commission of Wharton, dated thir-
tcCuLu NONSmUcE, IOf GLS udy no CldiIuCu
to be a member Of the board, shows that he
was appointed SecretaryOf State without
reference to any removed or Vacancy-a
commission without any effect. There Is
no pretense that Wharton was elected a
member OF the board, and it is shown that
he did not take the required oath eS a
member
1t follows that, as Wharton was Without
any official authority or standing, his pre-
.l.aI,
returning officers on the Incarnation of
Hatch and DaPOnte, was equally without
legal effect. and that the said Hatch and
DaPOnte were not elected members of said
board, a ajority not haTilg voted for
them; but that LOngstCeet and Hawkins,
who received a legal majority Of the votes,
were duly elected, and they, with Wal
moth, Heron and Lynch, constituted the
legal board, a majority of whom could act.
The law provides that, in case OF any
vacancy by death. resignation or otherwise,
by either of the board, then the vacancy
shall be filled by tho residue of the board
of returning Cficers." Warmoth, Lynch
and Heron were the residue, of whom two,
Lynch and Heron, it is shown voted for
Longstrcet and Hawkins, and WarmOth
voted for Hatch and DaPonte.
1t appears from the record that Bovee
acted az assistant secretary of the said
board until he was restored to his Office I'M
der the decree of this count, after which he
acted, il seems, as d member Of the board.
Our conclusion is, that at the institution
OF this suit, Warmotb, Heron, Lynch,
Longstreet and Hawkins were tho legal
board of returning officers, under the law
OF 1870 mo. 1907, for the election on the
fourth day of November, 1872; that the de-
PENDANTS, Wharton, Hatch and DaPonte,
were intruders; that the in junction against
them properly issued; that the act No. 80,
of the twentieth of November, 1872, did not
have the effect of abolshing the said board
of returning officers, who met on The
! twelfth of November, 1872, and were, by
the first mentioned law, required to ICON
tinue in session until" the returns of said
election were completed. and that the
judge of the Eighth District Court for the
parish of Orleans erred in dissolving the
said injunction and dismissing this suit.
1t is therefore ordered and adiudged that
the board of returning officers composed OF
H. G. Warmoth. p. }. Heron, John Lynch,
James LOngstreet and Jacob Hawkins was
the legal board of returning officers of cleo
tons of the State of Louisiana, .and it is de-
creed that the Judgment of the court a qua
| be avoided and reversed so far as the ap-
! pellant is concerned, and that the defend
| ants, appellees, pay costs of this appeal.
Judges WHY and Kennard delivered dis
senting opinions ia this case, basine thes
! objection. chiefly on want Of jurisdiction.