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

| dent of the United States was criticised-at
least, the conduct of his Secretary of State
| Can the gentlemen forget the decision in the
| case of Luther against Bordelon, in which
| the DOrr rebellion was passed upon, and
one of two governments was recognized as
| the legal and constitutional government of
| Rhode Island. Can the gentleman forget
| the case of ex parte Sanford, the bred
Scott decision. in which the Supreme Court
| of the United States attempted to pass upon
| the exciting political question which was
| then at the basis of the formation of the
| political parties that divided the country
| 1t is the province of a court of Justice to
| decide questions of law, to examine the
statutes that may have been passed by the
| law-making power of the State; to compare
! those statutes with that higher statute, the
| constitution, and to see that that higher
statute is not violated by the passage or the
enactment of a law by the legislative branch
| OF the government. And this duty of COM
| pairing statutes and of deciding the political
| questions that necessarily arise therein,
and of passing upon the acts of the other
| branches of the government, is inherent in
! the nature of the courts established in the
| United States. Such is the tendency of this
| day. 1t was but recently that it was sug-
| gested in England that the contest for seats
| IN Parliament should be remanded to the
! Court of the Kings Bench; and but yester-
day or the day before, in the Senate of the
| United States, it appears that one of the
| most distinguished Senators sitting in that
| body proposed to enact a law remanding
| to some court the question OF contested
! elections. Thus it is the disposition to re-
mand all questions of law to be decided by
men learned in the law and sitting as judges.
The fifth ground urged by the gentleman
| in his motion is that the return day WAS not
| properly named by the judge below. The
NIrao fol- fhA dav of
January, and was made returnable within
| ten days. | think, if your honors please,
| that the case decided in the Twelfth An
| nual, 82j, settles the question that where
| an appeal is to be made I'm ten days, the
| construction is within" ten days. The
| harsh rule which dismisses an appeal which
may be filed one day late is established un-
| der the maxim that ut concerns the COM
| monwealth that there be an end of law
| SUITS" but the construction which We in
woke is in consonance with this maxim.
Chief Justice Ludeling-I do not under
stand the objection.
Judge Dibble-The objection is that the
return day was fixed within ten days, and
| not on the tenth day. We say that the
maxim under which this rule was estab-
lished is in cOnsonance with our interpreta
ton.
Then, finally, on the motion TO- dismiss, it
~ lublsJtu Ludg lue signature W Iu6 Jug
ment was obtained upon the application of
the counsel for the plaintiffs, and not upon
the application of the counsel in whose
favor the Judgment was rendered, and
therefore it ought not to have been signed.
We say that any litigant has right to get
out of court, and to that end either party
may ask the judge to do whatever may be
necessary 90 enable hins to end the litiga
ton.
now pass, may it please The court, to
the consideration of the merits of the case,
SO far as they may be presented on this ap-
peal. There are two points which shall
argue before the court, and which thint
the court ought to pass upon.
First-Were the persons joined with the
State in these proceedings the returning
board of elections, and therefore did the
injunction properly issues
1t is not necessary for me 60 read to your
honors the statute regulating elections,
which was discussed so thoroughly by the
counsel who preceded me. Your honors
are doubtless familiar with its provisions
and know that it organizes the board of
returning officers, naming the persons who
shall constitute it. 1t was insisted by the
counsel for the appellees that these gentle
men 30 named were not officers within the
meaning of the intrusion in office act, and
that therefore no suit under that statute
OOuII 10 III llO Ala
trusion in office act is in the nature of the
writ of quo warrantO at common law,
which issues, as Blackstone says, to inquire
into the right OF any person to hold or eX-
ercise any office, franchise or liberty. I'm
der this intrusion in office act the Attorney
General can inquire into the right claimed
by any person to exercise or administer any
public function. 1t was the object, the eyi-
dent intent of the Legislature, to provide q
remedy Whereby the State might inquire
into the right Of any person who assumed
to exercise any public function whatever.
Therefore it seems clear to me that this suit
was properly brought against persons who
were assuming to exercise public functions
of the most important Character-pubic
functions, the exercise OF which involved
the very existence of the government itself,
as the results have shown. On the day
fixed by law, as the record shows, for the
board Of returning officers to meet and can
yas5 the results of the election held in this
State on the fourth of November last, the
board assembled and proceeded to declare
that two of it's members were ineligible
TO sit ON that occasion, and under the pro-
visions of the law they then proceeded to
fill the vacancies which they thus made.
There then occurred an exciting scene,
which is portrayed in the affidavits offered
in this case. There was an endeavor on the
part of two conflicting interests to gain
control of the board. 1t seems that it all
turned upon the action of the Secretary of
State. Mr.. Heron WAS acting then as Sec
rotary of State. He was used in order to
form quorum until the vacancies were
made. He was then dismissed, and gen
tleman claiming to be his successor ap-
peared upon the scene. Now, the theory
that we have formed of this case renders
1t unimportant as to how the vote was
taken. or which gentleman was first voted
for, or who voted first On the occasion. I he
facts are these: That LOngstreet and HaN.
kins were elected by Lynch and Heron
voting yea, Governor Warmoth voting no.
Hatch and DaPonte were chosen by Gov
ernOr Warmosh and Wharton voting yea
and Lynch no. Lynch says that he voted.
That lie the best evidence for Inc, because
the positive assertion of q man worthy of
belief that he voted is worth dozen mega
tive atfidavits of persons who may not
have heard himo 1t is vain 20 imagine. may
1t please the court, that this contest can be
settled by determining who first voted.
There is underlying it a question of law.
and that question is as to whether Mr.. Her.
ron was the de facto Secretary of State on
that dayo The presiding judge in the
Eighth District Court having examined the
atiidaVits and having heard elaborate dis.
cussion from both sides. il considering th!.
point, said:
at seems TO mo that the case mus: turn
upon two questions of iaw~-tirst. the valid |
ity of the commission TO Wharton a. Secre-
tarY o; State: sec0ndlys upon the validity
of the acts of Heron or Wharton claiming |
each to be the de tacto Secretary Of State. !!
There is no longer any question in the State |
of Louisiana about tie fact that the Go" !
crnor has no power 10 remove an. man |
from Office unless the laws Of this State !
have expicI'ly vested III him that power in |
the specified instanc: in which he attempt. |
TO exercise it. The Supreme Court has. in !!
a number of instances. stated this dOct.'G. |:
explicitly. Now, Heron, on the thirteenth /