The New York herald., 1874-11-09

| fore recognised as Governor and when he had
previously interiered to suppress an insurrection
against him headed by McEnery.
In my second letter l referred TO several deci-
sions OF the Supreme Court OF the United States
amoog them that OF Virginia Vs. West Virginia
ul Wallace). These decsions-paruculariy the
one In waace-seemed to me to bear strongly
upon the point upon which MIR. O'Conor and my
sell differ.
DISTINCTION WITH A DIFFERENCE.
That gentleman. however thinks that they are
scarcely relevant,n and the only reason he gives
| for SO thinking Is that the courts were governed
only by the well established doctrine "tnat when
an executive offcer. under special authority
conferred upon him for q precisely defined pur-
pose, performs particular act essentially minis
isteral, ana which, in It's nature. en- be per-
formed but once. the courts viii not review his
/ proceedings should they be collaterally ques-
tonedn In applying this view to the cases cited,
Mir. O'Conor IS, with due Difference to him, clearly
mistaken. In the case OF Knox County vs.. Aspin-
I! wall t21 Howard. cited by me in my prior let
ter. ana the one In IL Wallace. just referred to,
the decision which was held 10 be
nnal not the decision or
question submitted to those deciding 1t as mere
ministerial agents, but involved examination ana
judgment, and sucn judgments were. on that ac-
count, held 10 be conclusive. In the first case the
commissioners OF the county were to decide
whether the subscription to the stock OF the rail-
road there the subject Of dispute) had been
authorized Dy the people OF the county. The COM
missloners, therefore. were TO examine into every
question involving the legality Of the election by
which 1t was supposed the subscription had been
authorized. This was not mere ministerial act,
put the exercise OF quasi judicial function. The
same remarks are applicable to the West Virginia
case. The returns OF the elections held In the two
aa herr ma nflon nah ~ nv n W n iQr
which they were held. made returnable to
the Governor OF Virginia, and authority was
given to him to decide whether they had, at such
elections, by majority Of votes. determined in
favor OF annexation to West Virginia. The Cover
nor OF Virginia, therefore, before he could certify
that such determination had been made, was TO
investigate the facts which the law required to
exist previous to the election, rs well as the legal.
ity OF the election IN all other respects.
"THY JUDGMENT, KINGln
1t is obvious that this, also, was not mere min
isterial, but judicial duty, and, ike every other
judicial duty, when passed into Judgment can be
reversed only on an authorized appeal The cases
in the Supreme Court are numerous In which 1t
has been held that where an ofncer is invested
with power which, In Its exercise requires
judgment and discretion, such power Is
judicial and not ministerial In the case or
Decatur VS.. Paulding IA Peters Chief Justice
Taney, giving the opinion OF the Court stated that
the duty OF Mr.. Paulding In the matter there in
question, was judicial drty which required
judgment and discretion, and was, therefore, when
performed, conclusive, and, though erroneous,
could not be rec,ined by mandamus. The same
doctrine has been held in regard to the account
ing officers OF the Treasury. Wherever their duties
require Judgment and discretion they cannon be
revised. however erroneous by nandamus.
The other reason assigned by Mr. O'Conor for
taking the Louisiana case out Of the doctrine re-
erred to, viz That there are parties" in tnat
case, Is equally untenable. First, because II par
ties are necessary to render the decision OF
President hnal, they did exist. They were, on the
one side, Kellogg and the people OF Louist
ana who are not In insurrection; and,
on the other side, the insurrectionists
But no "parties," !" In the ordinary acceptation Of
the term are requisite to the fnaity OF decision
under duty In It's nature judicial In such cases
all parties interested are before and represented
I by the oficer upon whom Is devolved the duty.
Mr.. O'Conor's further idea that 1t Is the United
States. and not the President, who are protect
the State against domestic violence ID, In words
true, Tor such Is the constitutional clause. But
how are they 10 perform the functionf
THAT'S THE QUESTION.
They can only do 1t by means provided by legis-
aton, and this they have done by the acts OF 1906
and 1907. The President, therefore, Is in
this matter performing the duty vested in
the United States by the constitution. He Is
made their agent for the purpose. To coll such
decision as this las Mr.. O'C0nor does) decision
falling within the principle he states is in my
view, palpaby erroneous. This will be seen by re.
ferrlng the opinion OF the Court, delivered by
Mr. Justice Miller in the West Virginia case, where
in referring to the authority OF the Governor he
says that the questions involved were made TO
! rest .'on his Judgment The other attempt or
Mr. O'Conor to distinguish these cases from the
Louisiana case Is that in the latter there were
none or the antecedents made necessary to the
the exercise OF q judicial power. There were not
to use his own words, any CITATION, issue trial.
There are no par.:es in any sense OF the term
which are recognized in Jurisprudence, nor il
there any Judgment" The answer to this Is very
obvious. Ii the function 10 be performed be In It's
nature judicial and the duty to perform It
is provided by law, that laU is o
substitute ior summons, citation, &c. When the
Presidenc approves, or refuses to approve, o law
passed by Congress the only summons he has IL
the presentation OF the law, and the only author
ity he has to pass upon the question Is the con.
stitution. II he approves, can he afterward re-
verse his approvali II he declines to approve,
| and the time has passed for approval can he re-
verse that decision And, are not both his de-
cislons as binding upon him as upon Congress ana
the country
| II SUBMIT SIR, THAT.n
Therefore, upon the whole. with all possible
Difference for Mr.. O'Conor, / conclude, as 1 con-
cluded my letter in answer to hts OF the 26th Sep.
tember, that his view on the point as to which he
and differ has no support either In principle or
on authority.
Since the letters OF Mr. O'Conor and myself
appeared IN your paper you have published two
communications from gentlemen OF high legal
authority, one George Ticknor Curtis and the
other Judge Black l propose very briefly to con-
slider the grounds taken by each OF them. Mr..
Curtis is OF the opinion that the recogntlons Of
Kellogg as Governor by the President in February,
1873, and in September 1874, we're not only un-
authorized but void, and his reason for this
opinion Is tnat they were founded upon his plac.
ing KELLOGG In power In 1872 BY enforcing the