The Opelousas journal. [volume] (Opelousas, La.) 1868-1878, 1873-02-01
Supreme Court Dectston.

street Board of Returning Officers, was
the legal one. We extract from the de-
%cision, which is quite lengthy, that part
relating to the merits of the case, as
follows:
On the merits of this case there is no
serious difficulty,
By the act No. 100 of 1870, under
which the election was held on the
fourth of November, 1872, the Governor,
the Lieutenant Governor, the Secretary
of State and John Lynch and L. CAN
derson, or a majority of them, were the
returning officers of said election, and
a majority of such majority con-
stituted o quorum. Two of them, the
Lieutenant Governor and T. c. Ander-
son, were disqualified from acting be-
cause of being candidates. These off
GERS were reQuiredto meet within ten
days after the election to anvass and
compile the statementsO of votes made by
the supervisors of registration and make
returns of the election to the Secretary
OF State, and to continue in session un-
til the returns are completed. Four of
them, the Governor, Lieutenant Cover
nor, the Secretary Of State and John
Lynch, met on the 18th of November,
and after selecting Governor H. G.. War
moth President and John Lynch Secre-
tary of the Board, and discussing. the
disqualification of two members, ad-
jOurned to meet on the next day. The
minutes OF these two meetings, as kept
by the President and Secretary of the
Board, are in the record, and they sub
stantially correspond, up to a certain
point of the proceedings, on the second
day. We will adopt the minutes signed
by Fl. c. Warmoth up to that point, to-
wit:
"The board met at eleven o'clock
Tuesday, November. 10, 1872, atthe Gov
ernOr's parlOr in the State House.
Present-Messrs. WarmOth, Governor;
Pinchback, Lieutenant Governor; Her
ron, Secretary of State, andJohn Lynch.
Mr.. Heron raised the question of the
qualification of Messrs. Pinchback and
Anderson to act as members of the
board.
Mr.. Warmoth asked for time to ex-
anime the Question, and for the pres
enc of MI. Anderson.
After much debate the board ad-
jOurned to meet at 10 NJ, Nov. Is, at the
Governors Office.
At IL m. the board met pursuant to
adjournment.
Present-Messrs. Warmoth, Lynch,
Pinchback and Heron.
Chief Justice Ludeling appeared to
swear in the members of the Board, and
each took the oath, with the exception
of MI. Pinchback.
On motion Of Mr.. Lynch, it was or
dered that, by reason of ineligibility
Messrs. Pinchback and Anderson be not
permitted to act al members of the
board.
MI. Pinchback asked the opiniono of the
Chief Justice, who took the same view.
Mr.. Pinchback aquiesced in the action
of the board and withdrew.
MI. Jack Wharton then appeared and
presented a commission from the Gov
nor, as Secretary of State, exhibited his
oath as Secretary Of State" etc.
just here the difference in the two ac-
counts of the two proceedings begins.
WarmOth states that Wharton exhibi-
ted his oath as a member of the board
and took his seat; that F. H. Hatch and
DaPOnte were elected by the votes of
himself and Wharton lynch n0tVoting)
to fill the vacancies; that Hatch and
DaPOnte were then sworn by Judge
Cooley, and took their seats; that at
this point Gen. Heron stated that the
proceedings were irregular, and left the
room, followed by Lynch.
Lynch, the regular secretary of the
board, gives a somewhat different ac-
count, and shows that he and Heron
voted, after formal nomination, for
James Longstreet and Jacob Hawkins
to fill the vacancies, and that he and
Heron voted "NOn upon the nomina-
ton Of Hatch and Da Ponte, made by
Warmoth, after which he and Heron
left the room.
We think there can be no doubt that
the eff0rt;to make Wharton a member
OF the board was a total failure. Heron
Is described by WarmOth himself as
Secretary of State and a member of the
board, by virtue of such office, up to the
appearing OF Wharton during the pro-
ceedings ON the second day of the meet
ing. The order ~suspending Boyee as
Secretary of State and appointing Her
ron by the. Governor on the goth of Au-
gust, 1871, (Which was before us in the
case OF the State ex rel. Bovee VS.. Her
ROM is in this record as a part Of Whar-
toms testimony. This document, the
above named suit, and the published
statutes OF the State since August, 1871,
show that Heron was de Jdct0 Secretary
Of State, and accordingto the opinion IN
the suit justnamed, and the constitution
and laws of the State, the Governor was
wholly without legal authority to sus-
pend, remove or appoint said officer.
The extrusion and exclusion of B0vee
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. His attempted appoint
ment of Wharton was an absolute null
lily, and gave Wharton no color of au-
thoTity to act eitheras SecretaryO of State
or member of the board of returning Of
ficers. Owing to the manner in which
the ase of the State ex rel. BOvee VS..
Heron, decided finally about the time
of the events above narrated, was man
aged, there was a final Judgment Of a
court of competent jurisdiction decree
ing the suspension of Boyeea as Secretary
of State and appointment of Heron to
discharge the duties thereof, to be legal;
and the effect of that Judgment contin-
ued until the decision by this court,
(about the ed of December, 1871 just
referred to-. Hence, as to the world,
HerronWas the acting Secretary of State
at the above date, and it was not in the
power of the Governor to remove him
the Governor having no control of said
office. There was no vacancy in the of
fee, Bovee being only suspended and
excluded, and yet the commission of
Wharton, dated 18th November, 1s7s,
the day he claimed to be a member of
the board, shows that he was appointed
Secretary of State without reference to
any removal or yacancy-a commission
without any effect. There is no pretence
that Wharton wa elected d member Of
the board, and it is shown that he did
not take the required oath as amember.
It follows that, as Wharton was with
ont any official authority or standing,
board of returning officers on the nom.