State ex rel. Attorney General v. Wharton

The opinion of the court was delivered by Howell, J. The petition of tlie State on the relation, etc. in this case, represents that H. C. Warmoth, F. J. Iierr.on, John Lynch, James Longstreet and Jacob Hawkins, constitute the legal board of returning officers and are duly qualified as such, for making the returns of the elections held in this State on the fourth November, 1872, and that Jack Wharton, F. H. Hatch and Durant Da Ponte, are pretending to be such officers and are attempting to act as such, and are interfering with the above named parties in the discharge of their official duties. The petitioner prays that said Wharton, Hatch and Da Ponte be cited and decreed to be intruders into and usurpers of the office of returning officers of elections, and that said Herron, Longstreet and Hawkins be decreed to be such officers. In a supplemental petition an injunction is asked for restraining and prohibiting the defendants from acting as such returning officers or interfering in any way with the legal board. On this petition a rule to show cause and a restraining order were granted. To this rule the defendants made the following answer: 1. “ The petition discloses no cause of action of which this court has jurisdiction. 2. “ The said Wharton, as appears by the affidavits on file, was duly appointed to discharge the duties of the office of Secretary of State during the suspension of George E. Bovee, and he is actually and peaceably in the discharge of such duties now, and was so at the time the petition and supplemental petition were filed. — 5 — 3. “ That as it appears by the affidavits on file, he and F. H. Hatch and Durant Da Ponte were duly summoned to sit as returning officers for the election held on the first Monday of November, 1872, being the fourth day of said month, and qualified as such, and their election and appointment are valid.” After hearing evidence and argument on both sides, the judge (Dibble) delivered a written opinion, in which he held that the informants were the legal returning officers and ordered that the injunction issue as prayed for. Two days afterwards, to wit, twenty-first December, 1872, counsel for the defendants moved for “ a new trial in the case on the grounds that the judgment rendered is contrary to law and evidence, and also because the plaintiff and relators have no standing in court, the law under which relators claim having been repealed.” This rule was fixed for trial on the twenty-fifth of the same month, on which day it appears that Judge Elmore presided, having been in the meantime inducted into the place of Judge Dibble; and on that day an exception was filed by defendants “to the petition of plaintiffs and their right to have and maintain the said suit, on the ground of and for the reason that the court lias no jurisdiction of the subject matter thereof.” The rule for a new trial was continued to the second day of December, when, after hearing pleadings and counsel, it was taken under advisement, and on the next day (the third) the Judge (Elmore) granted a new trial, giving as his reason that the act of the legislature, approved twentieth December, 1872, had repealed the act of 1870 creating a board of returning officers, and consequently no such board existed, and there was no one authorized to count the votes or make returns of the election of 1872, until new appointments should be made by proper authority. On the same day, as appears from the minutes of the court a motion was made by defendants’ counsel and granted by the judge, dissolving the injunction issued in the case and dismissing the suit. From the transcript of appeal it appears that this judgment was not signed until the second of January, 1873, when the record of the suit having been tiansferred to the Superior District Court, and the judge thereof being recused, it was signed by Judge B. L. Lynch of the Fourth District Court, who granted an appeal therefrom to A. P. Field, Attorney General, upon his allegation that he was aggrieved thereby, and his affidavit as to the amount of his interest involved. The defendants have filed the following motion in this court: “ Now come the appellees and move to dismiss the appeal taken in this case on the following grounds: 1. “The judgment was rendered by W. A. Elmore, Judge of the Eighth District Court on the third day of December, 1872, and was of — 6 — a character that did not require signature, and no appeal could therefore be taken after the lapse of ten days from its rendition. 2. “That no judgment rendered by the said Judge of the Eighth District Court could be signed by the Judge of the newly created Superior District Court. 3. “That that portion of the act of the legislature creating the Eighth District Court, which authorized the appointment of a judge is unconstitutional, null and void, and therefore the said B. L. Lynch had no authority, acting in the place of Jacob Hawkins, recused, to sign said judgment. 4. “ That A. P. Field, the appellant, has no interest whatever in taking this appeal, which this court can recognize. 5. “That A. P. Field, the appellant, has no interest in the appeal taken by him, inasmuch as the plaintiff returning board has in spite of the decision of the inferior court exercised the authority it claims, canvassed and announced the result of the election as to the office of Attorney General, and therefore as to appellant and his rights the said plaintiff returning board is functus officio, and no longer can exercise the functions it claims so far as said Field is concerned. 6. “ That said appeal is made returnable on sixth January from a judgment signed second January, 1873, the usual period of citation, ten days, not being allowed and the law requiring the appeal to be returnable in ten days. 7. “ The judgment was not signed at the instance or on the motion of Semmes & Mott of counsel for defendants, and if this fact is denied the case should be remanded to ascertain the truth, and the court had no right to sign a judgment unless applied to by the party in whose favor it was rendered.” We have thus detailed the proceedings because the main objections of the defendants, before us, to an examination and decision of this cause are purely technical, and we must therefore be careful to confine our investigation to the matters only which are really and properly presented in the record. And in this connection we will premise that we can give no force or effect to the document filed here during the argument, which bears the signature of the judge who dismissed the case in the court a qua. It appears simply to be the original motion, in the handwriting of defendants’ counsel, to dissolve the injunction and dismiss the suit, filed on the third of December, and entered in the minutes of that date for the first and only time ; there is no date to the act of signing and nothing to show when it was signed; (see C. P. 543, 546); it is not contained in the transcript in its present form and is no where referred to in the pleadings or record in either the inferior or appellate court, and it is inconsistent with the grounds of the motion to dismiss the appeal. We therefore lay it out of view. — 7 — First — The first ground is untenable. The judgment is one dissolving the injunction and dismissing the suit. It is therefore a final judgment which must be signed, and no appeal could be taken from it until it was signed, which was done on second January, 1873, and the appeal was properly made returnable within ten days from that date. C. P. 546; 3 La. 430; 19 An. 290. Act No. 45 of 1870, $ 7. Second — The law creating the Superior District Court authorized the judge thereof to do, in the cases transferred to it from the Eighth District Court which was abolished, what the judge of the latter could have done. Act No. 2 of December 11, 1872. Third — Whether or not the appointment by the Governor of the Judge of the Eighth District Court or of the Superior District Court is unconstitutional, null and void, can not be determined in this collateral manner. He was or is acting under such color of authority that we «an not, on a motion to dismiss, go behind it and declare it an absolute nullity. In the case of each of said courts the appointment of the judge was expressly authorized by the statute creating the court, as in the case of an original vacancy. Whether this might or might not be sustained as constitutional, in a proper proceeding, it is clear that this is not the occasion to settle the question. The said judge was or is manifestly an officer de facto at least, and his acts must be recognized just as those of an officer de jure, until upon a regular trial he is declared not to be an officer. 13 An. 404; 16 Peters 194; 56 Penn. 436; 15 Mass. 180; 13 Wendell 491. Fourth — The alleged want of interest in the appellant is the main ground relied on by defendants. It was contended in argument that the district court was without jurisdiction because the matter in dispute between the parties is too small, and hence this court has no jurisdiction. This is met by the appellant with an affidavit of one of the members of the plaintiff board that his pecuniary interest in the suit ■exceeds one thousand dollars, and a reference to act No. 72 of 1871 (p. 182), shows that an appropriation was made for the compensation ■of the same returning officers. This mode of establishing an appeal-■able interest, under such circumstances, is fully sanctioned by our jurisprudence. See 20 An. 575; 22 An. 602; 21 An. 336, 448; 23 An. .580, 769. In addition to this there can be no question as to the importance of the matters involved in this controversy. It affects to a great ■extent the whole political fabric of the State, and has even entered the departments of the federal government. Surely a subject which ihas commanded such widespread interest, and has required an argument of three hours length from such able counsel as represents the •defendants, can not be designated as too insignificant to come within ■the consideration of the Eighth District Court of New Orleans or of this court. — 8 — The object of the limitation in the constitution to the jurisdiction of' this tribunal, is simply to exclude from it such controversies between litigants as are of minor importance. This case is not of that class. Under every constitution of this State, containing limitations of jurisdiction, this court has entertained jurisdiction of suits of separation from bed and board and of divorce, where there was no appreciable money value involved. See 19 La. 567. And so too of suits by slaves for their freedom, 13 An. 406. The interest of the State and of the people of the State in the correctness of the ruling of the Eighth District Court of New Orleans in this proceeding is of such magnitude,, that we would be derelict if we should, upon such bald technicality, refuse to entertain jurisdiction of the cause, even if there were no pecuniary interest shown, which however has been done. The chief reliance however seems to be on the fact that A. P. Field, in whose name the appeal is taken, is a third person without interest, and the case of the State ex rel. Sullivan v. Mount, 21 An. 755, is cited as conclusive against his right to appeal. In that case this court said, “from his own statements we could not perceive that the appellant, a third party, had any interest whatever in the matter in dispute,” and dismissed the appeal. Without questioning the conclusion arrived at, it does not, in our opinion, settle the point as to the appeal in this case where the statements of the-appellant do make his interest apparent. Every case must be determined upon its own facts and merits. A reference to the plain provisions of the law on this subject will furnish a safe guide. Art. 571 C. P., says: “The right of appeal is given, not only to those who were parties to the cause in which a judgment has been rendered against them, but also to third persons not parties to such suit, when such third persons allege that they have been aggrieved by the judgment.” This seems to be unambiguous. It must be, of course, applied with reference to the constitutional jurisdiction of this court. If the matter in dispute involved in this suit, is such as to demand or authorize the action of this court, the right to appeal is accorded by the above article to third persons, who allege that they are aggrieved by the judgment rendered in a suit between other parties. The law does not say that such judgment shall be res judicata against the third persons to entitle them to appeal. It does not say that they shall have such right of action against one of the parties as to sustain an intervention in their suit, and claim the very thing which one of the parties is claiming. The only condition is they must make a reasonable showing that the judgment complained of is calculated, in its effects, to injure them. Now in this case, A. P. Field has made the requisite allegation, supported by his affidavit. And he has made it apparent to9 our minds that he is aggrieved by the judgment appealed from, which annuls the authority by which he was declared to be elected Attorney General of the State, whose salary is five thousand dollars per annum,, and the return of the plaintiff board is the foundation of his title to his office. Under the law it is not necessary, in support of his right of appeal, that he should demand in this suit to be declared legally elected nor that he should seek to regulate the judgment as between, the parties to the suit, but simply to regulate it so far as it affects him. The difficulty of adjusting the rights involved in a litigation does not control the right of action. The cases in 20 An., 21 An., 22 An. and 23-An., above cited, support the right of the appellant to this appeal. That of the State ex rel. Byerly v. Judge, 23 An. 768, was much less-favorable to such right than this case is, and in that case we sustained Byerly’s right as a third person to appeal. But the interest of A. P. Field as the attorney general of the State, by whom such actions as this may be brought, is such as to make it appropriate in him to ask a revision of the judgment rendered in the court of the first instance. If, however, there should be a reasonable-doubt as to the right of appeal now before us, under the well established jurisprudence of this court we would maintain it as a constitutional right. Fifth — What is said above disposes practically of the ground that the appellant has no interest, because the plaintiff board has exercised its authority in his behalf and is now functus officio. Ilis interest is-in having the legality of said board established at the time it was-'exercising its functions. He does not pretend that said board shall again act in his behalf, but that it shall be decreed to have been the legal board of returning officers, when it declared his election. Sixth — -The objection that full ten days were not allowed to bring up-the appeal is without force. The law directs that the appeal in such cases shall be returnable within ten days after the judgment of the lower court. The return day may be in less but not more than ten, days. Seventh — It is immaterial at whose instance the judgment was signed. The law requires the judge to sign all definitive judgments. C. P. 546_ Our conclusion is that this appeal is properly taken and the motion to dismiss is refused. The answer of the defendants to the rule nisi pleads no cause of action, and puts at issue the right of the respective parties to be declared the legal returning officers. • Upon the plea or exception thus made it was contended in argument that the board of returning officers is not an officer within the contemplation of the law, and therefore the suit should not be brought under the intrusion act. The counsel could hardly be serious in this, as in, — 10 — •another part of his argument he insisted that it was a court vested with powers to judge. Be that as it may, the members ot the board .are designated as officers in the act itself creating it. “An office is a right to exercise a public function or employment, and to take the fees •and emoluments belonging to it.” An officer is one “lawfully invested with an office.” Bouvier, verbo Office. The fact that no emoluments or .fees are fixed in the law itself does not necessarily imply that none will be given or that none are attached to the office. In this case the •contrary appears to be true, and it comes clearly within the above definition. ■ It was also contended, somewhat vaguely it is true, that the matters ■at issue are not properly questions to be determined by the judiciary. We have heard no good reason to sustain this prop isition, nor can we imagine any. It is not and can not be denied that we have a constitution and laws made in conformity thereto in this State •, and it is the province oí courts to decide on the rights which conflicting parties •can legally set up under them. “ Constitutions and laws precede the .judiciary, and we act only under and after them, and as to disputed rights beneath them rather than disputed points in making them. When claims oí individuals come in conflict under them, it is the true province of the judiciary to decide what they rightfully are under such constitution and laws, rather than to decide whether those constitutions and laws have been rightfully or wisely made.” 7 Ilow. 22. Two sets of individuals claim to be the legal board ot returning offi■cers. It is difficult to conceive why this is not a judicial question. It is the province of courts to say what the law is — jus dieere. Because the law makes it the duty of the Governor to open, in the presence of ■the said returning officers, the statements of the supervisors of registration, it can not be inferred, as counsel intimate, that he is vested with the extraordinary discretion to determine who are the returning ■officers under the law. No such power or discretion is conferred on him. The next objection is that the law signed by the Governor on the ■twentieth November, 1872, relative to elections, repealed the election law oí 1870 which created the board of returning officers, and thereby •destroyed their office. If this were so, the action of the judge of the Eighth District Court in granting a new trial and subsequently dissolving the injunction and •dismissing the suit, were nullities for want of parties to stand in judgment. But we are clearly of opinion that no such effect followed the passage of the said act. Both laws were enacted to regulate elections in this State; the one of the later date is but a revision and re-enactment of the former, with such emendations as were deemed necessary. The new law, it is — 11 — true, contains a repealing clause, but it could not have been the intention of the legislators to repeal or destroy what they had carefully guarded in the new law. The office of the board of returning officers is not abolished, but is preserved in the act signed on twentieth November, 1872. The mode of filling the office alone is changed. Under article 122 of the constitution, the old members continued in office to ■discharge the duties imposed on them by the law, until their successors were inducted into office, and by the election law they were to ■continue in session until the returns are completed. Such is the doctrine enunciated in State ex rel. Holmes v. Wiltz, 11 An. 439; State v. Kreider, 21 An. 482; and State v. Brewer, 22 An. 273. It is very clear that the provisions of the act of 1872 were intended to ■apply only to elections held under it after its passage, and by no correct or admissible rule of construction can its repealing clause be held to defeat an election had under the previous law and the results thereof not yet ascertained. It would be worse than trifling with the right of suffrage thus to change laws regulating elections. The difficulty is not remedied by the theory suggested by counsel, that alter the approval of the new statute, the Governor, ex necessitate rei, must; or could appoint a new board to complete what, by his own act, the former board was rendered powerless to complete. Such a necessity could not be created by him for such a purpose. It is inconsistent with and opposed to our republican system of government. The Governor is not vested by the new law with authority to appoint the returning officers. They are to be elected by the Senate, and the Senate as elected had to be organized before it could elect, and its organization depended on the result of said election. ■On the merits of this case there is no serious difficulty. By the act 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 T. C. Anderson, or a majority of them, were the returning officers of said election, and a majority of such majority constituted a quorum. Two of them, the Lieutenant Governor and T. C. Anderson were disqualified from acting because of being candidates. These officers were required to meet within ten days after the election to canvass and compile the statements of votes made by the supervisors of registration, and make returns of the election to the Secretary of State, and to continue in session until such returns are completed. Four of them, the Governor, Lieutenant Governor, the Secretary of State and John Lynch, met on the twelfth of November, and after selecting Governor H. C. Warmoth President, and John Lynch, Secretary of the board, and discussing the question of the disqualification of two members, adjourned to meet on the next day. The minutes of these two meetings as kept by the — 12 — president and by tbe secretary of tbe board are in tbe record, and they substantially correspond up to a certain point of the proceedings on the second day. We will adopt the minutes signed by H. C. Warmoth, up to that point, to wit: “ The board met at eleven o’clock, Tuesday November 32, 1872, at the Governor’s parlor, in the State House. “Present: Messrs. Warmoth, Governor; Pinchback, Lieutenant Governor; Herron, Secretary of State, and John Lynch. “ Mr. Herron raised the question of the qualification of Messrs. Pinchback and Anderson to act as members of the board. “Mr. Warmoth asked for time to examine the question and for the presence of Mr. Anderson. “After much debate the board adjourned to meet at 12 M., November 13, at the Governor’s office. At 12 M. the board met pursuant to adjournment. Present: . Messrs. Warmoth, Lynch, Pinchback and Herron. “Chief Justice Ludeling appeared to swear in the members of the board, and each took the oath with the exception of Mr. Pinchback. “ On motion of Mr. Lynch it was ordered, that by reason of ineligibility, Messrs. Pinchback and Anderson be not permitted to act as members of the board. “Mr. Pinchback asked the opinion of the Chief Justice, who took the same view. “ Mr. Pinchback acquiesced in the action of the board and withdrew. “Mr. Jack Wharton then appeared and presented a commission from the Governor as Secretary of State, exhibited his oath of office as Secretary of State,” etc. 1 * * Just here the difference in the two accounts of the proceedings begins. Warmoth states that Wharton exhibited his oath as a member of the board and took his seat; that F. H. Hatch and Da Ponte were elected by the votes of himself and Wharton (Lynch not voting) to fill the vacancies; that Hatch and Da Ponte were then sworn by Judge Cooley and took their seats; that at this point General Herron stated that the proceedings were irregular and left the room, followed by Lynch. Lynch, the regular secretary of the board, gives a somewhat different account, and shows that he and Herron voted, after formal nomination,, for James Long-street and Jacob Hawkins to fill the vacancies, and that he and Herron voted’no upon the nomination of Hatch and Da Pontemade by Warmoth, after which he and Herron left the room. We think there can be no doubt that the effort to make Wharton a. member of the board was a total failure. Herron is described by Warmoth himself as Secretary of State and a member of the board — 13 — by virtue of such office up to the appearing of Wharton, during the proceedings on the second day of the meeting. The order suspending Bovee as Secretary of State and appointing Herron by the Governor, on the twenty-ninth August, 1871 (which was before us in the case of the State ex rel. Bovee v. Herron), is in this record as a part of Wharton’s testimony. This document, the above named suit, and the published statutes of the State since August, 1871, show that Herron was defacto Secretary of State, and according to the opinion in the suit just named and the constitution and laws of the State the Governor was wholly without legal authority to suspend, remove or appoint said officer. The extrusion and exclusion of Bovee 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 appointment of Wharton was an absolute nullity and gave Wharton no color of authority to act either as Secretary of State or member of the Board of Returning Officers. Owing to the manner in which the case of the State ex rel. Bovee v. Herron, decided finally about the time of the events above narrated was managed, there was a final judgment of a court of competent jurisdiction decreeing the suspension of Bovee as Secretary of State and appointment of Herron to discharge the duties thereof to be legal; and the effect of that judgment continued until the decision by this court (about second December, 1872,) just referred to. Hence, as to the world, Herron was 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 office, Bovee being only suspended or excluded, and yet the commission of Wharton, dated thirteenth November, 1872, the day he claimed to be a member of the board, shows that he was appointed Secretary of State without any reference to any removal or vacancy — a commission without any effect. There is no pretense that Wharton was elected a member of the board, and it is not satisfactorily shown that he did take the required oath as a member. It follows that as Wharton was without any official authority or standing, his pretended vote, as a member of the board of returning officers on the nomination of Hatch and Da Ponte, was equally without legal effect, and that the said Hatch and Da Ponte were not elected members of said board, a majority not having voted for them; but that Longstreet and Hawkins, who received a legal majority of the votes were duly elected, and they with Warmoth, Herron and Lynch constituted the legal board, a majority of whom could act. The law provides that “in’case of any vacancy by death, resignation or otherwise by either of the board, then the vacancy shall be filled by the residue of the board of returning officers.” Warmoth, — 14 — Lynch and Herron were the residue, of whom two, Lynch and Herron, it is shown, voted for Longstreet, and Hawkins and Warmoth voted for Hatch and Da Ponte.- It appears from the record that Bovee acted as assistant secretary of the said board until he was restored to his office under the decree of this court, after which he acted, it seems, as a member of the board. Our conclusion is that at the institution of this suit Warmoth, Herron, Lynch, Longstreet and Hawkins were the legal board of returning officers under the law of 1870 (No. 100), for the election on the fourth day of November, 1872; that the defendants, Wharton, Hatch and Da Ponte were intruders; that the injunction against them properly issued; that the act No. 89 of twentieth November, 1872, did not have-the effect of abolishing the said board of returning officers, who met on the twelfth November, 1872, and were by the first mentioned law required to “continue in session” until the returns of said election were completed; and that the judge of the Eighth District Court for the parish of Orleans erred in dissolving tire said injunction and dismissing this suit. It is therefore ordered and adjudged that the Board of Returning Officers, composed of H. C. Warmoth, F. J. Herron, John Lynch, James Longstreet and Jacob Hawkins, was the legal board of returning officers of elections of the State of Louisiana, and it is decreed that the judgment of the court a qua be avoided and reversed so far as the appellant is concerned, and that the defendants, appellees, pay costs-of this appeal.