Year: 1875

| we are unaOle TO see the necessity To-


the discussion now going on relative t


the appointment of the Justices of th'


Supreme Court. The law which created


these offices fixed the term at eight year.


and provided the manner of appointment


Thus far all the requirements have beer


complied with, and it is to be presumed


they will be when the present term of the


court expires The person who occupies


the executive chair on the day after the


term expires will be called upon by the


law, which is the only mandate of the


people which an officer is permitted tc


regard, to appoint their successors. Yet


We dnd this perfectly simple question is


made the subject of discussion by two


city papers, and they have between them


set legal mind to cogitating on the sub


ject the result of which is synopsis of a


decision by former Supreme Court upon


a question in which the same principles


were involved as govern in the case under
| discussion. There is, however, different
condition of facts in the two cases. In


the one referred to as having been passed


upon by the court, the vacancy, which was
filed by Governor Walker, did not occur


until after Governor Hebert became chief


magistrate. The law, therefore, never con-
templated that the person who was Gov
ernor in 1852 should fill vacancies which
would occur in regular course in 1853
Governor Walkers own term expired be-
fore that of the harbor master whose sue


cessor he attempted to appoint. This


was clearly an exercise of prerogative and


discharge Of duty which the law had i'm
posed on his successor.


The term of the Supreme Court ends
in August next, nearly five months
before the expiration of Governor
Kellogg's time of service. The law has
imposed upon the executive of this
State the duty of appointing justices
of the Supreme Court in August of every
eighth year. Whoever may be exercising
the functions of executive on the day the
term expires, will be the person desig-
mated by law to make the appointment;
as clearly so as if he had been mentioned
by name in the statute. A fair construc-
ton of section 26l7 Revised Statutes,
would seem to make it the duty of the
Governor to make the appointments be-
fore the term expires:


SEC. 26l7. In all cases where the law
shall direct any appointment to be made by
the Governor and Senate, within limited
time, nomination for such appointment
shall be laid before the Senate at least six
days before the expiration of said time.


In the case of the Supreme Court "the
said time" expires, We believe, on or about
the twenty-ifth of August, 1875. The
law requires the nominations to be laid
before the Senate at least six days before.
No maximum time for such nomination is
given, but six days is the minimum.
There is little doubt of the power of Gov
ernor Kellogg to send in nominations to
the Senate for supreme judges at any time
during the next session of the Legislature.
There is none whatever of his duty to do
so before certain day in next August.


We have stated the law bearing upon
the case, which we understand to be the
will OF the people, as contained in the
only way it possibly can be. The law
affirms one thing and contemporary
another. We must give our adherence
to the first named authority. The law
which was made years ago by the peo-
Piles representatives says in almost so
many words that Governor Kellogg shall
do certain thing at least six days be-
fore the twenty-fifth of August. The en-
actment has been tacitly approved by
each succeeding Legislature, as it has
never been changed. The Democratic
organ, on the other hand, which never
consults the people, and is rarely seen by
them-at least nine-tenths-sets up
protest against the discharge of this ex-
ecutive function by Governor Kellogg on
the ground that "the people" will not be
with his appointees. That if he
does not postpone the appointment until
after the expiration of his own term,
when of course Confederate Democrat
perhaps brigadier, if one can be spared
from Congress-is expected to be Gov
ernor, the people will call constitutional
convention and abolish the court. This
is stuff and nonsense. If the majority of
the people of this State shall want con-
vention bad enough to pay the expenses,
they can have one at anytime. But that
is no more to Governor Kellogg than the
fashion of hats next year. He is to exc
cute laws which the people have actually
made, and has nothing whatever to do
with those which any party authorized or
not may promise in their name. i


We take it, then, that Governor Kel-
logg having some regard to the law and
his sworn duties under it, will continue to
be Governor and all the title implies until
his term is ended. That during that time
be will not suspend the force of law be-
cause Democratic organ tries to make
him believe he will offend the people if he
obeys it. And, finally, that he will take
very good care to appoint the next Su-
preme Court at the proper time and in |