The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-06-12
FIFTH DIsTRICr CoURT.

| ,Chadwlek vs.. Bois.-Judgment In favor of
Brady b Mcclellan vs. F. Raichle.-Judgment
for opponents.
State ex rel. City of New Orleans VS.. New Or
| leans WHLerW0rkS Com pany.-ThiS Is an ap-
| tlicatiob for q mandamus to com Del Defendants
| 10 register the transfer of s233 648 worth 1f
stock sold in accordance with the provisions
| of the act Incorporating the new Waterworks
company.
IMPORTANT DECISION.
State OK rel Dan Wilson vs. e. T. Parker
kelator mad prayed that defendant be declared
an intruder IN the Office of public administra-
tor. which he claimed was legally hts. In this
case Judge Rightor decided Ia favor Of defend
ant, as follows:
The dispute in this case arises out of a claim
TO the office OF Public Administrator.
The defendant claims that he Is entitled to
retain possession Of the office for the term of
four years from june 4. 1875, the date of his
commission. acceptance and gu t1ifcation for
the office. The ralator claims by virtue Of
commission from the Governor dat d May, 1878.
From careful consideration of the authors
ties submitted to me am Of the opinion chat
under the act Of 1870, Is for four years and tie
term from which the four years commence is
the date OF the commis sion. This view does
not conflict with the authority OF Bry VS.. Wood
run 18th. Louisiana. $50. Under the facts of
that case 10 appears that the law said nothing Of
the tenure, but only of the appointment which
1t required to be made bisnnially. In 5th An-
nuaIs 53a, this question and authority were rec
viewed and the. distinction quoted particularly
referred to By NJ Justice slldell and find this
Supreme Court having reference to these is
sues have met with some difficulty. however,
which facts seemed to have influenced his Ex-
eellency the Governor In making the appoints
ment Of Mr. Wilson In May last.
Mr.. Parker was commissioned In June. 1872.
This. under the law, continued him In once
until June, 1876; but In June. 1876 he was again
commissioned and accepted the office. thus
Why this was done. or upon what theory.
I am not informed. II am left to presumps
tons which operate 10 favor Of public officers
or and legal cause. Parker did not complain
and accepted. and now claims from 1875. This
was not an appointment In anticipation, or one
to take effect from the expiration OF tenn of
office.
As to Parker. It was voluntary abandon-
ment or resignation In favor OF q new appoint
ment. / cannot Understand, under certain
condition Of things. that such an act would re-
cetye contamination. Now. while it might be
urged from convenience and expedisncy, it
could be justified under the law. for the courts
would not permit. the rights of succeeding
administration to be invaded by d retiring one.
In this instance the rights of the present exec-a
tive have not been invaded by the appointment Of
Parker In 1875; on the contrary that fact lessen
opinion Of the Supreme Court In ii An. asa,
may be interpreted by the following illustra-
Parker was appointed public administrator
for four years. his term ending January TO-
1877 In December. 1876. Gov: Kellogg had APP
when bis term Of 1s7 expired TRis i Would b BE
nullity. In the words of the court: I'VE hold
1t TO be entirely inadmissible to pretend that
the Governor and Senate can foretelI the action
Of their successors in office upon executive
appointments to other offices of which the term
shall expire during their possession of the
reins of government"
/ am further fortified in this conclusion by the
authority Of Judge Spofford, eoncurring In joy
vs. Lusk, upon the authority of Segur vs.. Cren-
shaw, 8 An. 40t. and an examination of that
case has guided me in reading as 1 ha, done
the cause Of Joy. II An, 49,
The exception that this court is without juris-
diction Is in my opinion, untenabIe: it is over-
ruled, but on the merits OF this controversy
am with the defendant. Judgment Diminishing
the petition of relator. with costs.