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

| sought after and faithfully executed, if not
in conflict with paramount law. And in
| cases like this the meaning must be sought,
not merely in the words of the statute it
I self, but in it's subject matter, in the history
| of the legislation thereupon, in the purpose
| of the law, the reason of its enactment, and
the evil it sought to remedy"
have never found a clearer statements
| of the proper rule for construction than
that in this opinion. The Chief Justice of
| the present court, in the case of the State
against Brewer, reported in % An, page
213, used the following language:
lin interpreting laws, courts should If
possible, construe them so as to avoid max
| lug them absurd or misohievOus."
In Cooley on Constitutional Limitations,
page 1874, it is said:
Tho court, If possible, must give she
| statute such construction as will enable
| it to have effect This is ONLY saving in
another form of words that the court must
| construe the statute in accordance with the
| legislative intent; since it 10 ALWAYS to be
! presumed the Legislature designed tho
| statute to have effect, and not to be null
lily. The rule upon this subject Is thus
stated by the Supreme Court of Illinois:
| Whenever an act of the Legislature can
be so construed and applied as to avoid
/! conflict with the constitution and give it
| the force OF law, such construction will be
| adopted by the courts. Therefore acts of
the Legislature in terms retrospective, and
| which, literally interpreted, would inval-
| idate and destroy vested rights, are upheld
| BY giving them prospective operation only;
for applied to and operating upon future
acts and transactions only. they are rules
| of property under a subject to which
| the citizen acquires property rights, and arc
! obnoxious to no constitutional Imitation
| but as retroactive laws they reach to and
| destroy existing rights, through force eli
/ ,,l.S. haar
| judgment of law. SO will acts of the
| Legislature having elements of limitation,
| and capable of being so applied and admin
! istered. although the words are broad
| enough to, and do, literally read, strike at
| the right itself, be construed to limit aud
| control the remedy; for as such they are
! valid, but as weapons destructive of vested
| rights they are void; and such force only
will be given the acts as the Legisla,
| ture could impart to them The Supreme
| Court of New Hampshire. where similar
question is involved, recognizing their obi
CATION so to construe every act OF tho
Legislature as to make it consistent, ii Ii
be possible, with the provisions of the con-
stitution,' proceed to tha examination OF
statute by the same rule, without stopping
to inquire what construction might be war
ranted by the natural import of the Ian
guage used"
In Smiths Commentaries I find tho fol
lowing language:
"No law-giverIwas tied down to his own
resolutions, but either he himself CT thosa
that came after him, upon proper emer-
gencies and upon proper suggestions, might
alter them for the public advantage. 1t
must, however, be understood with this re-
strietion: that he can not alter his mind to
another mans disadvantage, or amend g
law which to another has created right"
Keeping in view, NAV it please the court,
don, fol alag of trun
your honors, in considering the effect OF the
repeating clause in the act approved on this
twentieth November, 1872, must come to tho
conclusion that it did not have the effect Of
abolishing the returning board created Ia
the original act. If your honOrs come to
the conclusion that it did, it results in an
archy. If your honors determine that after
an election has been held under
statute found upon the statute books.
that statute prescribing the mode in
which the results are to be asCertained. tho
Governor, by merely signing an act which
is in his possession, may destroy the gov
eminent ITSELF may prevent the legal ascer.
tainment of the names OF the persons who
may have been elected to the General As
sembly to succeed the one that is dead
say that such an Interpretation would ba
miscellaneous in the language of the decision
which have read. Such an Interpretation
must necessarily lead to anarchy and to the
OTIS will avoid such an Interpretation.
The new law provides that the members
of the returning board shall be elected by
the Senate. Now, when the cons titutiOn
declares in explicit terms that the Legisla-
lure may provide by law for filling vacan-
cies in offices which it may create, that, IN
der the general provisions which authorize
the Governor to fill vacancies in other
Offices, he can not fill vacancy when the
Legislature has reserved power to other
persons. The Legislature in this instance
reserved the right to ill vacancies in these
offices to the Senate, and therefore the
Governor could not appoint persons to fill
those offices. This new law, take it, is
mere revision of the old statute. This con
struction will harmonize the act with article
122 Of the constitution of the State. The
learned counsel who addressed your honOrs
yesterday attempted to insist that this
article l22 did not apply except to those
officers named in the constitution. fail to
see how he could arrive at such an under
standing OF these words "Al officers shall
continue TO discharge the duties of their
Offices until their successors shall have been
indicted into office, except in eases Of Inn
parchment or suspension"
This is simply declaration that public
functionaries shall not endanger the safety
of the State by abandoning their posts I'M
til their successors shall have been indicted
been chosen. This article of the cOnsttu
ton overrideB the statute. 1t must have
been in the minds OF the members of tho
Legislature when they adopted the revisorS
election law, that when they established 81
new returning board the old returning
board should, under the constitution, con-
tinue to exercise their duties until their
successors should be indicted into Office.
Your hOnOrs will conclude that such was
the intention of the law makers, and when
they expressly reserved TO one branch OF
their own body the power OF electing tho
new board it can not be said that they in
tended to vest the executive with
that power. Your honors can properly
consider the circumstances attending th@
passage OF the bill which Governor War
moth assumed TO approve on the twentieth
day of November last. 1t was passed duT
ing those days of cOmmOtion and excite
ment, now about year since, when the
public peace was threatened, when the
whole people were in arms in this city
demanding reform from their repre-
sentatives in the Legisl tture. Your
hGn0rs can look properly at the records of
the legislative department of the govern
ment, and may consider the messages adj
dressed to both branches by his excellency
the Governor, recommending the imm6db-
ate passage of this law. implying that it,
was his intention then to sign it in order to
satisfy the public demand. Your hOnors
will consider these facts i'll arriving at the
intention of the Assembly. 1t was not the
purpose OF the Legislature in the presence
Of these demands, in the presence of these
pledges made by his eXcellency in the mer-
sage sent to them, to vest HIM with the
power Of determining who the election
officers should he. 1t was because there
was objection made to the individuals then