New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-01-19
NEW ORLEANS REPUBLICAN, SUNDAY, JANUARY 49, 1873

of some other person claiming the othoe, or
upon proceedings taken by the state.
through its law officer, for intrusion In
Office. This rule has been frequently an.
nouuced by the highest courts IN the land.
Buckner vs.. Ruggles. Is Mass, lsO; Fowler
va. Beebe, 9 Mass, 23I; Cash vs.. Whitmore,
IA An 40l: Hall VS.. Luther, l3 Wendall,
49l: Facer Va. Fuller, l3 Mich, 527; Com
missioners va. Mcdaniel, 7 Jones (law)
n. C., 10Y; Stokes VS.. Fitzpatrick, Metcalf
XVI, 1873; Bean vs.. Thompson, l9 n. H.,
300. "
ut ia not an unjust rule, for it Injuries no
one. Parties lItigant have no interest in
inouiring into the validity OF the appoint
ment Of the judge. If he has color of
title to the Office he is an officer de facto,
and his acts can not be questioned, though
it be subsequently adjudged that he is not
an officer de jare, and he be ousted from the
Office. The rule is founded in public policy,
and is without exception. Numerous cases
are reported. The Legislature of Massa-
chusetts by an act established the county
of Hampton. A provision of the law was
that it should not 90 into effect for several
months after the passage. The Governor,
however, appointed certain officers of tho
county 1T once, among them q judge of she
Probate Court. The Supreme Court held
that the appointments were invalid, but
they said: SO long as the persons were de
fdctO officers under such an appointment
their official acts we're lawful, except only
in cases of direct injury to their fellow-citi-
zsns, an exception which can not apply to
one acting in the Office of Judge Common
wealth VS.. Fowler, 10 Mass, 30l. In an
other case involving the same appointments
the court said: The adoption Of such rule
is necessary to prevent failure of justice
and great public mischief, which might
otherwise be justly apprehended.' ~ Buckner
VS.. Ruggles, Is Mass, $50. So in Fowler
VS.. Beebe, 9 Mass, 23l; People VS.. Collins,
John. -; IS Pickering, 4S7; 3 Cruise Dig 4,
Title Office; Wilcox VS.. Smith, WeBdall,
23l People vs.. Stephens, 5 Hill. 6l6; Parker
VS.. Baker, s Paige. 42S; Hooper Us. Good
win, 4S Maine, 70.
at would be manifestly improper for q
judge to pass judiclally upon his own right
to an Office" Beard vs.. Cameron, 3 Muir
phys LAW and Equity N. C. Rep, ISL.
'It would be trihing for judge to permit
litigants to question his right to preside in
the court into which they may come OF
may be brought In the case Of Lyon VS..
the State Bank, ! Stewards Reports, s42,
the Supreme Court of Alabama said: If
the right be admitted, the courts are sub
disagreeable kind, and their authority
weakened and abused by frivolous or imsgi-
nary objections to the person of the judge"
These cases quoted were then carefully
examined by myself and came to the
same conclusion which now entertain
that where person has been commissioned
to % judicial Office, and holds that Office
under such eoler OF title as the court is
bound to recognize, no third person can
L. 49, d x.@ Hn%
his right can only be questioned by the
State, under proceedings taken contradic-
torily with him. The learned counsel cited
q case from Massachusetts, but think that
the cases which ! have just read to your
honors relative TO the appointment OF the
officers in Hampden county, fully answers
whatever may have been in the case FROM
Gray's Reports bearing on this point. A
case was also cited by him, think, from the
Pennsylvania Reports. Allow me to read
the language of the Supreme Court of the
State of Pennsylvania in a case recently
decided by that court. They say: when
one i. acting as an officer under Che appa-
rent authority of on act OF Assembly, his
title to the office can not be assailed
An act of Assembly, although
is sufficient to give color
of title, and an officer acting under it is an
officer de tacto" Commonwealth Us. Mo
Combs, So Pennsylvania, 436.
May it please the court, it is not the mere
which o person may have in
his possession which gives shat color of
him as an officer de facto, but is is the au-
thority behind that commission iustifying
and authorizing its issuance. Now, in the case
Of the judge of the Superior District Court.
who holds an appointment from the Govern
prof the State, it is not his commission which
constitutes him an officer de facto, but it ia
the authority of the act of the General AS
sembly of louisiana, directing that such y
shall issue; and your honers
have always held, as every court in the
United States has held, that no act of the
General Assembly, passed with the formal
tics required by the constitution, shall be
considered unconstitutional until it shall
have been carefully investigated.
] am not disposed to discuss the other
question urged upon the attention of the
,Ourt by the learned COUNSEL as to the va
lidity OF this act: yet it may not be i'm
proper for me to say that j have not the
slightest doubt about the validity of that
portion of the act creating the Eighth Dis
trict Court for the parish of Orleans, and
that portion of the act creating the Supe-
riOr District Court for the parish of Orleans,
authorizing the appointment of the judge.
constitution Of Louisiana directing that
Judges shall be elected, but that is not the
)Dly provision of the constitution relative
70 filling judicial offices. There is an arti-
lie in the constitution which authorizes the
Legislature to determine how vacancies
nay be filled. There is an article in the
which authorizes the Governor
If the State to fill vacancies; and believe
hat when there is an original vacancy, as
n the creation of o new Office, the Legisla-
,ure may oonstitutionally authorize the
,ointive power, to fill such vacancy until
'he time for elections fixed by the existing
statutes or by the constitution of the com
onwealth shall have arrived.
pass now, may it please the court, to
.he consideration of the fourth ground for
he dismissal of this appeal, that the inter
7enor, A. 2. Field, has no interest which
Till entitle BIN to maintain his appeal in
his controversy. Under this heading l
hall first consider, may it please the court,
he question of interest as applying to all
he parties plaintiff, and then the interest
# this intervenor. The learned counsel in
listed that this court has no jurisdiction as
between the parties plaintiff and defendant, |
md indeed, he insisted that the court be- |
ow had no jurisdiction because there was |
10 mOneyed interest involved in the con- |
roversy. now, again, call the attention
If your honors to my point that this is not |
! controversy between two persons claim |
ng thing, but controversy between the |
State of Louisiana against persons whom |
he State alleges are violating the constitu-
ion and the laws. The real plaintiff in !
his case, again say. is the State OF Louis
ana. who is proceeding through her courts |
o maintain the constitution and the laws |
f the commonwealth. In the case Of the
tate of Louisiana against John j. Kreider.
ecided by this court. and reported in
| An, page 4S2, the court said:
trhe court was considering the Intrusion |
4 office act, IlndeS which the present case
J brought
cit is clear the Legislature Intended 10
emedy an evil prevailing to no small ex.