State ex rel. Morgan v. Kennard

Lodeling, C. J. On the sixteenth day of January, 1873, the following rule was filed: “ On motion of A. P. Field, Attorney General of the State of Louisiana, herein appearing upon the relation of Philip Hickey Morgan, a resident of the parish of Orleans, and upon suggesting and giving the court to understand and be informed, as follows, viz : “ That said P. H. Morgan was nominated by the acting Governor of the State to the Senate thereof to fill the office of Associate Justice of the Supreme Court of the State of Louisiana; that his said nomination was duly confirmed; that he was commissioned thereto on the fourth of January, 1873; that he lias taken and subscribed the oath required by law; that he is entitled and empowered to execute and-fulfill the duties of said office according to law, and to have and to hold said office, with all the powers, privileges and emoluments thereof. And on further suggesting that John H. Kennard, also a resident of said parish, unlawfully holds said office, and executes the duties239 thereof, and. claims the right to the office and to the powers, privileges- and emoluments thereof, it is ordered that said John H. Kennard show cause on Saturday, January 18, 1873, at eleven o’clock A. M.,. why it should not be forthwith decreed and adjudged that he is unlawfully holding and exercising the duties of said office of Associate Justice of the Supreme Court of the State of Louisiana, and the said P.. H. Morgan be decreed and adjudged entitled thereto.” On the day on which said rule was made returnable, the eighteenth, of January, John H. Kennard filed the following exception : “ And now comes John H. Kennard, and excepts that there has been no citation issued herein, or served on him in this case, and prays to-be hence dismissed with costs.” The exception was overruled by the court a qua-, and then the defendant filed the following exceptions and answer, to wit: “ Now comes John H. Kennard, defendant in this suit, and excepts-to the rule herein taken by A. P. Field, Attorney General, on relation of P. H. Morgan, on the ground that said proceeding by rule, in manner and form as set forth in said rule is not authorized by law, and further that the act of fifteenth January, 1873, entitled ‘An Act to regulate proceedings in contestations between persons claiming a judicial office ’ as to its first section is unconstitutional and void, not being in conformity to the title of said act. And further, that said act is prospective and does not apply to pending litigation. And further,. that said act in relation to sections two and three is unconstitutional, as it authorizes proceedings which amount to a denial of justice. And further, that if said act is to be construed as applicable to suits instituted prior to its passage, it is retroactive and void, as violative of article 110 of the constitution. In case these exceptions be overruled, and not otherwise, for answer to said rule this respondent avers that he was duly appointed by the Governor of this State to the office of Associate Justice of the Supreme Court of the State of Louisiana on the third of December, 1872, vice W. W. Howe, resigned, during the recess of the Senate, and that on the same day he was duly qualified and took possession of said office, having complied with all legal requirements, and his term of office has not yet expired.” The exceptions were overruled on the eighteenth of January, 1873 ; and tlie trial of the rule, which had been fixed for the eighteenth of January, 1873, was commenced, and was continued to Monday, the twentietli instant. On the twentieth January the following amended and supplemental answer and prayer for jury was filed : “ Now comes J. H. Kennard and for further answer prays for a trial by jury, and pleads that the said act of the Legislature, under which relator, P. H. Morgan, claims - — 240 — ito proceed, is null and void, as violative of section one, article fourteen, of the Constitution of the United States, which forbids any State from making any law, which shall abridge the privileges and immunities of its citizens, and prohibits any State from depriving any person of life, liberty, or property, without due process of law, or to deny to any person within its jurisdiction the equal protection of its laws, and if said law is void, this court has no jurisdiction to proceed by rule in the manner and form as set forth in said rule.” The prayer for a jury was refused by the judge a quo on the grounds •that it was made only on the twentieth of January, after the trial of ■the case had been commenced on the eighteenth and continued for trial to the twentieth, and because the act of the fifteenth of January, 1873, ■■forbids it. The trial was concluded ou the twentieth day of January •and judgment was rendered in favor of the relator and against the •defendant on the same day. The defendant has appealed. During the course of the trial several bills of exceptions were taken to the rulings of the District Judge, which we will proceed to notice. The first bill of exceptions is to the refusal of the prayer for a jury, •on the ground that the defendant was entitled thereto under the constitution of the United States. It was decided by this court as early as 1818, that the provisions of the federal constitution relative to juries refer only to trials in the federal courts, and not to those in the State courts. Maurice v. Martinez, 5 Mart. 436. And in Dobbs v. Hemken, decided in 1842. this court said : ‘‘ The claim of a constitutional right to a trial by jury in all controversies where the amount exceeds twenty dollars, has been so long settled by this court, that it is unnecessary to comment upon it now.” 3 Rob. 126. In the case of the City Bank v. Banks et al. Chief Justice Eustis said : “ The trial by jury in criminal cases is guaranteed by the Constitution ; in civil cases it rests with the Legislature alone, and they have provided that certain classes of cases shall be tried without the intervention of juries.” 1 An. 419. But even if the defendant had been entitled to a trial by jury, he had forfeited his right by not claiming it in time. Code of Practice, articles 494,495; 2 An. 651, Louisiana State Bank v. Ledoux et al.; and 3 An. 198. We do not think that the fourteenth amendment of the Constitution of the United States makes any change on the subject of jury trials in ■civil suits. The plaintiff offered in evidence the following documents : First — Extracts of the minutes of the executive session of the Senate •of the State of Louisiana, held January 4, 1873. Second — List of the Senate of Louisiana, certified by P. G-. Desfonde, Secretary of State. — 241 — Third — An official notice in the New Orleans Republican, of December 9, 1872, on the fifth page thereof, being compiled returns signed by John Lynch and others, returning officers, declaring certain persons 'elected Senators of the State of Louisiana. Fourth — The record in the case of the State ex rel. Attorney General, etc., v. Jack Wharton and others, No. 18 of the Superior District 'Court. To the introduction of each and every one of said documents the -defendant objected on the ground that the evidence was irrelevant. 'The objection was overruled and the evidence was received. We are of opinion that the evidence was properly received. The defendant alleged in his answer that he had been appointed, during the recess of the Senate, to fill the vacancy created by the ■resignation of Mr. Justice Howe, and “that the term of his office had ■not yet expired,” claiming that under article sixty-one of the constitution his commission did not expire until “the end of the next session” •of the Senate. It was pertinent, therefore, to prove that there had •been a session of the Senate, and that that Senate had confirmed the •appointment of the plaintiff. The fact that subsequently, during the Adjournment of the court, the counsel for defendant did not question the fact there had been a Senate of the State of Louisiana in session, •but contented themselves in simply contending that there had been but one session of the Legislature, which was still continuing, does not make the evidence offered less germane to the issues in this case. Nor is it a reason to reject the evidence that we might have taken judicial cognizance of the fact that there had been an extra session of the Legislature subsequently to the appointment of the defendant. Considering the technical objections which have been urged to prevent a trial on the merits of the case, it is not surprising that extraordinary prudence should have been exercised by the plaintiff in the introduction of evidence in support of his case. We will notice the several exceptions urged against this suit. The first relates to the waut of a citation. The form and manner of bringing litigants into court is a matter entirely within legislative control. Code of Practice, article 97, declares: “ Civil actions may be prosecuted, according to the nature of the case, by three kinds of proceedings, to wit: ordinary, -executory and summary.” Article 98 declares that “the proceedings are ordinary when citation takes place, and all the delays and forms of law are “observed. They are executory when ■seizure is obtained against the property of the debtor, without previous citation, in virtue of an act or title importing confession of judgment, or in other cases provided by law. “ They are summary where carried on with rapidity, and without the observance of the formalities required in ordinary cases, as when — 242 — courts provide for the administration of vacant successions and the property of minors and absent heirs.” In the case of City of New Orleans v. Elijah Cannon, the defendant was sued for the city tax of 1853, and was cited under the thirty-fifth section of the consolidation act of 1852, which substituted, in lieu of petition and citation, the constructive service, by advertisement, of the tax bill in the official newspapers of the city. Mr. Justice Yoorhies, being the organ of the court, held that such proceeding, in the absence of petition and citation, are not unconstitutional, and that “summary proceedings clearly fall within the term ‘ due process of law.’ ” 10 An. 764, 767. In 11 An. 375, Chief Justice Merrick, as the organ of the court, said: “ It is in the power of the Legislature to determine in what manner parties may be brought into court, and we have recently decided, in regard to city taxes, that a decree rendered upon such notice is obligatory.” The proceeding by rule is not new under the laws of this State y and whenever the Legislature authorizes it, that form of remedy may be adopted by litigants. The delays allowed by the new law are in no-sense in conflict with the constitution of the United States. The delay of one day to answer, if insufficient, would undoubtedly be extended by the court, if requested to do so. The Code of Practice provides that “when the defendant appears, he may pray for further time to answer, and the court may grant further delay if necessary for the-purposes of justice.” Art. 316. The exception that the law of January 13, 1873, violates section one of article fourteen of the constitution of the United States is utterly without foundation. It merely provides a more speedy remedy for the settlement of contests for judicial offices. It is based upon sound considerations of public policy. The maintenance of the rights of person and property, the preservation of the public peace, security and order depend upon the prompt,, certain and uninterrupted administration of law. In order to secure such administration of the law, it is essential that those who exercise power should be clothed with unchallenged authority. For this purpose, no doubt, the Legislature of Louisiana passed the law, providing-fora-speedy trial and settlement of conflicting claims of persons to judicial offices. In Rice v. De Buys, this court said : “ Necessity appears to require that the possession of the elective offices shall be-determined without the delays of an ordinary law suit.” 5 An. 398. In Borgstede v. Clark the court said: “But in this proceeding no appeal is permitted, no matter what may be the pecuniary value of the office. In the case of De Buys the constitutionality of this provision-of the statute was debated. We sustained its constitutionality, and. refused to entertain an appeal, because we considered the contest a — 243 — matter of public concernment, and not a law suit between individuals.” 5 An. 732. Another exception to the mode of proceeding is that the suit should have been in the name of the claimant Morgan alone, and not in the name of the State, etc. We deem it sufficient to state that Morgan is a party plaintiff with the State, and he has been represented by private counsel in both courts; if it be conceded, therefore, that the new law authorized the suit in the name alone of the party claiming the office, the State having been joined with him in his demand did not invalidate the proceedings — “ utile per inutile non vitiatur." But see 5 Wheaton 291; Wallace v. Anderson, 5 An. 732; State ex rel. Wickliffe vs. Delassize, 12 An. 711. The other exceptions are equally without foundation. Tlie title of the law does indicate sufficiently its object, and the law was not designed to have any retroactive effect. > The suit was instituted on the sixteenth of January, 1873, after the promulgation of the law in question, which was in operation, by the terms of the law, “from and after its passage.” On the merits, the question is, have the ■ plaintiffs proved their demand; have they shown that P. H. Morgan was appointed and confirmed to the office of Associate Justice of the Supreme Court of the State of Louisiana? The public is concerned in knowing this fact. To determine that question, it is necessary to know if his appointment was made by the Governor of the State, and if that appointment has been confirmed by the Senate of the State? The appointment was made by P. B. S. Pinchback, who signs the commission as acting Governor of the State of Louisiana. Was he acting Governor of the State ? We have no doubt of the fact. He was elected President of the Senate in December, 1871, after the death of Lieutenant Governor Dunn. As such he became Lieutenant Governor, during the unexpired term of Oscar J. Dunn. Section 1560 of the Digest of the Statutes of this State provides that “ in case of the vacancy in the office of Governor, the Lieutenant Governor shall be Governor; in case of vacancy in the office of Lieutenant Governor, the Senate shall elect a president, who shall be Lieutenant Governor.” Page 142. The law does not say during bis senatorial term, but that be “shall be Lieutenant Governor.” If the Governor had died or resigned the day aiter, the Lieutenant Governor would have become Governor. Can it be pretended that under those circumstances the office of Governor would have become vacant by the expiration of the time for which P. B. S. Pinchback had been elected a Senator? We think not. He was Lieutenant Governor when Governor Warmoth was im — 244 — peached by the House of Representatives. During his impeachment the Governor was suspended, and the “powers and duties of the office devolved upon the Lieutenant Governor.” Constitution of La., art. 53. Was the Senate, which confirmed P. H. Morgan, the Senate of the State of Louisiana 9 It was composed of persons, returned as elected, to the Secretary of State, by the returning officers recognized by this court to be the legal returning officers at the late election. Constitution, art. 45. It was organized at the State House by those whose names had been furnished by the Secretary of State to the Secretary of the Senate, in accordance with the election law of this State; it was presided over by the Lieutenant Governor, and subsequently it was recognized by the acting Governor of the State, as a part of the General Assembly. It is tacitly admitted by the defendant that the body of men who confirmed the appointment of Morgan is the Senate, for he attacks a law, under which this suit is brought, enact.ed by the General Assembly of which this Senate forms a part, not on the ground that the act was not passed by the Legislature, but on the ground that the law violates the constitution of the State and of the United States. Though we have not the power to decide who are the members of the General Assembly, yet, we, as judges, are bound to know what assemblage of men constitute the State Legislature, for we are bound to know what are the laws of the State, in order to adjudicate upon the rights of litigants under the law. We are of opinion, therefore, that P. II. Morgan was duly appointed and confirmed Associate Justice of the Supreme Court, vice W. W. Howe, resigned. But it is contended that during the recess of the Senate John H. Kennard was appointed Associate Justice of the Supreme Court, to fill the same vacancy, and that the term of his office has not yet expired. Article 51 of the constitution declares “the Governor shall have power to fill vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of the next session thereof, unless otherwise provided for in this constitution,” etc. We deem it unnecessary to decide, in this case, whether or not the commission of the defendant would entitle him to hold the office, after the appointment and confirmation of another person to the same office, until the end of the next session of the Senate; for, in this case, it is shown that a session of the Senate was held after the defendant’s appointment was made, and that that session ended on the sixth day of January, 1873, and before the meeting of the regular session of the General Assembly. The language of the constitution seems too clear to admit of but one construction — “ until the end of the next session — 245 — of the Senate.” It is not denied that there was an extra session of the General Assembly convened on the ninth day of December, 1872; but it is contended that the constitution in article sixty-one refers to ordinary or regular sessions. The constitution authorizes the Governor to convene the Legislature on extraordinary occasions. There is no reason therefore to say that article 61 refers only to the regular or annual sessions of the General Assembly — and we can not construe article 61 in the manner contended for by the defendant, without interpolating the words regular or ordinary in the article — which, of course, we can not do. It is manifest from article 75 of the constitution that it was the intention of the framers of the constitution that the judges of the Supreme Court should be appointed by the Governor, “with the advice and consent of the Senate,” and article 61 provides for a contingency which might arise, but it limits the duration of the commission of the officer, appointed when the advice of the Senate could not be had, to the end of the “next session of the Senate,” during which session the Governor can, if he wishes, have the advice of the Senate. This limitation was a restriction upon the power conferred upon the Governor ex necessitate rei. There is no merit in the defense. It is therefore ordered and adjudged that the judgment of the lower court be affirmed with costs of appeal.