The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-04-13

AmCa OF the Ke1lOgE 6u-
preme Court and the Creation of the
NicheIrs supreme Court"
The persons claiming TO constitute the Kellogg
Packard Supreme Uowft haze ~ title not depsnd-
et directly upon tile Of the Packard government,
and especially Of the Packard Senate.
Article rs OF the constitution provides that "the
Chief Justice and Associate Justices shall DO ap
pointed by the Governor with the advice and con-
sent OF the enate." The validity Of the appoint.
ment, on the 9Th of this month january OF Chief
| Justice Ludeling aud Associate Justices Leonard
| and King, who claim that they were illegally
| elected ffom the supreme Courssroom, depends
| upon the legality OF the senate at the state
| House, which advised and consented to their APP
ppintment. recognition of theif titles - ofii,e
| necessarily involves q recognition OF the General
| Assembly at tho State House. Concediug thai
| Gov Kellogg who signed their commissios Q, WAS
1 the lawful Executive, still the appon ment was
invalid IL the rena was Illegal, because by the
| express provisons of article ~ of the eonsttu
| ton the advice and consent Of the Senate were
essential aud the wsnt OF authority in the Ben-
ate advslDg and consenling to said appointments
invalidsed it, II 10 claimed, however, that II the
said appointment was invalid, tn SO judges had
AUTHORITY under article 122 OF the constitution,
to retain possession Of the courtro' IN and dis
charge their official duties. The answer TO this
| Ia two-fold
| /. Having accepted the appointment OF the 9th
Of January, 1877, and qualified = thersnnder' they
| abandoned any other right to 0fioe.
| On this pont we refer to the certificate OF the
minute clerk of the Supreme COURT, herewith
filed, and to the authorities cited In the brief
filed by Messrs. Semmes, Campbell Miller
| See exhibit IA"
q Assuming thst the judges holding over had
| authority under article 122 OF the constitution to
set up an adverse claim to the possession OF the
courtroom, such claim has not been made by
quorum of the members holding over under said
article -,
Justice King held no title to Office under ar
ticle 122 OF the constitution.
His sole right 10 Office depends upon his ap.
pointmont of 9Th January, 1877. the validity OF
which depends upon the legality OF the Senate at
the state. uuse, which advised and consented to
said appointment; without him there were only
two jndges-~not quorum.
His PRETENDED APP ointment OF the goth Decem-
ber, 1876. vice Justice Wyly, was nudity, there
being no vacancy in the meanipg OF article 81 OF
the constitution, and the Governor being without
authority to Issue the commission under which
he qualified on 231 Dece cember, 1876. Justice
Wyly sat during the week ending ON Esd Decem-
bsr 1875, and when the court adjourned that
day, it adjourned to meet again on the 9ah Of
January, 1877 at which time, neither he nor Jus
tiees Howell and Morgan, constituting QUORUM,
appeared and set up any demand for the possess
sion of the courtroom, and to this day, 30 far As
advised, they have made no complaint on ac-
count oil the oo upstion Of the courtroom by the
appointees OF Gov. Nichols.
Al before remarked, the Chief Justice and
Associate Justices, by article 10 OF ths consitu'
tion, oan only be appointed by the Governor with
the advice and consent OF the Senate. A com"
mission cannot issue under said article until the
advice and consent OF the Senate are obtained;
and such d rectal is usually contained in the
commission.
The teru, OF office ss for eight years. bat Article
l22 OF the constitution provides that all officers
| ttY,stA to f1G n
Offices until their successors shall have been in
Quoted into Office" Article 8 oil the constitution
provides that tho Governor shall have power TO
fill al vacancies that may happen during the recess
OF the Senate, by granting commissions which
shall expire at no end of the next session thsre
Of anless otherwise provided for by this constitu
non.
The evident object of this article 81 WAS to pro-
vide against in Offices OF the State DUR
ng the recess of the Senate; that 10, to protect
the state against the possibility of having no Off
GERS to administer government during tho re-
cess of the senate, as might occur by death,
resignation or removal. The appointment under
this ar tole 10 temporary merely, snd 10 only made
where an unexpected event or exigenoy has hap
pened. -
permanent usual and expected in the ordinary
course Of things.
When the constitution says that "al officers
shall continue TO discharge the duties Of their
offices until their SUCCESSORS snail hsye been in-
Quoted into office" it means when considered in
reference TO the appointment OF Judges OF tbs
Supreme Court.1 "sUooEssoRs" who snail have
been permanently appointed under article 75
and not judges temporarily under article 81. 1t
refers to the usual or normal condition OF things
and not to the unusual or ahnormE
Justice Wyly's term OF office had expired, ane
4 his successor could have been regularly appoint
y cd under article rs, but as he continued 10 dis
charge the duties of his office under article l22
: there was no vacancy, in the sense OF article 81
0 OF the constitution, requiring temporary ap
poin'ment by the Governor.
The constitution contemplatesa permanent aud
not temporary succession for judge holding
over under article l22.
Q The term OF eli the district judges expired OF
r the day Of election, November 7. yet the Gov
sruor could not appoint Justice King. vice Justic'
! Wyly on Goth December last, because the consti
tuition requires permanent and not temporar,
: successor for Judge holding over and dischargiDt
the duties Of his Office, under artlcle l2z of th
> constitution,
: The views expressed herein are sustained b.
Judge stery,. in his treatise on the Constitution
il Of the United States, which contains similar pro
visions to our constitution, in reference to up
a pontments by the executive.
\ The Constitution says: "The President shal
= have power 70 fill vacancies that may happel
: during the recess OF the Senate, by granting
commissions tha shall expire at the end OF thei
8 next session" Judge Story says, paragraph 1851
the propristy OF this grant 10 30 obvious that
!, can require no elucdatiou. There was but one G
d two courses to be adopted either the Senat
should be perpetually in session. in order to pro
= vide for the appointment OF officers, or that tn
= President should be authorized to make tempo
: rary appointments during the recess, wnic
9 should expire when the Senate should have n
J, opportunity to act on the subject. The forme
II course would have been at once burthensome
y the Senate, and expensive to the public. III
n latter combines convenience. pfomp.ltude G
a action and general security.
Paragraph 1868 says: The appointments 9
made, by the very language OF the Constitution
expire al the next se sion of the Senate, and th
commissions given by him have the same dars
O ton. When the Senate is assembled, IL the Pres
h dent nominates the same officer 10 the officr, th
n is, to all intents and purposes new nomination
= and il approved BY the Senate, his appointmer