Dissenting Opinion.
Elliott, J.I am so strongly convinced that the law is with the appellee that I can not assent to the prevailing opinion. The importance of the question involved requires a statement of my reasons for dissenting, and this statement I shall make without elaboration.
Governor Porter issued to Peelle a commission in March, 1883, and under that commission he entered into possession of the office. At the expiration of the term designated in the commission issued by Governor Porter, Governor Gray, then the Governor of the State, issued a commission to Peelle, and under these commissions he continued in undisturbed possession of the office, discharging its duties, and recognized as an officer de jure, by all the departments of the government until this action was brought. He entered into office under Governor Porter’s commission, and continued' under that of Governor Gray. He entered office, therefore, by executive sanction, and his continuance in office was by *524executive authority; for, either this must be true, or else it must be true that no executive power or function was exercised in commissioning him, and surely in every commission there is some expression of executive judgment.
The law of the case, as declared on the former appeal, which controls us now, whatever may be our individual opinions, is that the legislative election in 1883 was utterly void; and if it was void Peelle could not have entered into the office, nor have held it under that election; for it is absolutely inconceivable that a void act can confer a right or title. But Peelle did go into office, and has continued there for nearly seven years, and the only power which could put or keep him there was and is that of the chief executive of the State; and the chief executive, by the commissions issued to him, authorized him to enter into the office and to continue in it, so far as it was in the power of the chief executive to do so. The chief executive alone had power to put and keep him in office, and it was the chief executive that did put him into office and continue him there by designating him as the person' entitled to the office in the commissions issued to him. It seems clear to me that the only power to which Peelle’s appointment is referable is the executive power, for there is no other to which it can, by any possibility, be referred.
The fact that Governors Porter and Gray recited in the commissions issued by them that Peelle was elected by the General Assembly, and that he was commissioned because he was so elected, does not prove that the minds of the chief executives did not assent to and confirm his appointment. They knew the law ; they knew that they alone possessed the appointing power; and, knowing this, they designated him as the person to fill the office, and thus gave him the place by their own acts, for it was in their power, and in theirs alone, to withhold the office or to bestow it upon him. No other department of the government could bestow or withhold the office. The law, as declared on the former ap*525peal, is not a new law; for, according to the decision, by which we are bound, it has existed since the adoption of the Constitution, and it was known to the Governors of the State at the time the commissions were issued; for no man can be deemed ignorant of the law, certainly not the highest officers of the State.
Neither Governor Porter nor Governor Gray was the mere agent or clerk of the General Assembly; for, in appointing to office, the Governor exercises a power vested in him by the the Constitution. He is beyond legislative control in all cases where he exercises his constitutional prerogative, and that was exercised in this instance. What may be the power of the Governor under a valid statute is a question with which we have here not the remotest concern. Here the commissions were issued because the chief executive had the constitutional power to issue them by virtue of his prerogative. He could not, indeed, issue them by virtue of any other right or power vested in him.
In exercising his constitutional prerogative the Governor exercises his own will and judgment. No one can share the power with him, nor divide the responsibility. As the issuing of the commissions were executive acts, under the Constitution, they express the executive judgment and will, for they can express no other in a case such as this, where the Governor possesses the whole and the exclusive appointing power.
If either Governor Porter or Governor Gray exercised the constitutional prerogative of the chief executive — and in this instance no other could have been exercised- — then what moved them to do it, or what reason, belief, motive or opinion influenced them is not a question for judicial cognizance, nor can it be under our Constitution. To attempt to ascertain in any mode or under any circumstances, or by any process or procedure, what influence conti’olled the mind and judgment of the Govern or, would be an invasion of the executive domain which no authority will warrant nor any principle justify. If the courts can by one mode, whether *526by examining the commission or by some other, inquire what belief, motive or opinion influenced the judgment of the Governor, they can do so in any mode, and this would subject the exercise of executive power to judicial control. Our Constitution expressly forbids that this should ever be done. It can not be said that there is one mode in which the inquiry may be prosecuted and no other, for once it is granted that the question is a judicial one, then all modes are open to the courts and they may probe the executive mind in every method known to the law. I affirm that the courts can not prosecute any inquiry for the purpose of ascertaining what influenced the Governor to issue a commission in such a case as this, for it is a question over which the courts have no jurisdiction.
In a case where the power to appoint resides exclusively' in the Governor,' and where he writes the name of a person in a commission and delivers it to him, he exercises his constitutional prerogative, for he can exercise no other. When it is ascertained that the Governor has issued a commission, there the power of the courts terminates.
No ingenuity of invention, nor any subtilty of argument, can make it appear otherwise than that in the judgment of Governor Gray and of Governor Porter, Peelle was the man entitled to the office. This was the executive judgment, and the executive judgment is conclusive, for the sole and absolute power of appointing to an office which it is the prerogative of the Governor to fill by appointment is in the Governor. His judgment, however influenced, no court can supervise. Even if it be true that the executive judgment was misled or was controlled by an erroneous view, still it was the executive judgment, and as such beyond review. The ’ executive judgment was called into exercise and the executive pen wrote the name of the man designated to fill the office. If there was an exercise of executive judgment, no matter how invoked or upon what ground it proceeds, it is unimpeachable, for there is no tribunal that has jurisdic*527tion to investigate the question of executive conduct in cases where, as in this, the power of deciding resides wholly in the Governor.
It is useless to cite as authority or as illustrations cases where the appointing power is not exclusively vested in the Governor, for they have not the remotest application to such a case as this. Such cases prove nothing at all to the point, nor prove anything that anybody denies, for all concede that where the Governor has not the exclusive appointing power, his commission is not the vehicle for conveying the title to the office. But even in such cases it does convey some expression of the executive judgment.
It must be true that a commission issued by the Governor in a case such as this, where he has the whole appointing power, expresses his judgment, or it must be true that it is utterly void. To declare it void is to affirm that the highest officer of the State did a vain and idle thing, and this no court has power to do. Nor can it be assumed that the Governor, having the sole power to appoint, has violated his constitutional duty and his oath, and laid down his high constitutional prerogative at the feet of the Legislature. If it be adjudged that he yielded to an unconstitutional statute, surrendered his executive independence, and invested a man with the indicia of office, it is necessarily asserted that he wrongfully yielded his executive independence and violated his duty, and this assertion no court can rightfully make, for the plain reason that it can do no more than ascertain that the Governor has invested the man he names in his commission with the legal indicia of title. The act of issuing a commission, of itself and by its own force and vigor, expresses the executive judgment that the man named shall take the office, and no court can inquire what belief or opinion influenced the judgment of the chief executive.
The act of issuing a commission, where the Governor has the sole power of appointment, is absolutely, wholly and exclusively executive. It is impossible that it can be partly *528executive and partly legislative. It embodies the judgment of the Governor — this it embodies, and this alone — for it can not embody the judgment of any one else on earth. If it embodies any part of the executive judgment, no court can inquire what influenced that judgment without usurping power that belongs to another department of the government.
It is not within the power of the courts to examine any evidence, whether supplied by the commission, by the books of the Governor’s office, or by the oral statements of the Governor, for the purpose of ascertaining whether he was influenced by an insufficient or an illegal cause to clothe the man whose name he wrote in the commission with the indicia of office. President Garfield wrote upon the commission of General Wallace “ Ben Hur,” and surely no one would assert that it was competent for the courts to inquire whether the presidential judgment was influenced by that great book. If, however, they can inquire into the motives or opinions of the appointing power in any case, they can do so in such a case as that instanced as an illustration as well as in any other. The only defensible conclusion is, that, if the instrument is a commission, what is written in it has no force as evidence beyond the fact that the person named is designated as the one who, in the executive judgment, is entitled to the office specified, and the courts have no power to push their investigation beyond that point. I repeat that we are here dealing with a case where the sole right to appoint resides in the Governor, for the rule is different where the Governor has not the appointing power; back of him in such a case is the source- of right and title, but where he has the exclusive power, he is the exclusive creator of title and right. He is the sole fountain of right and power. No more need be known, and no more can legally be known, by the courts than that he has designated a person to fill an office by writing his name in a commission and delivering it to him.
But if it be conceded (a concession that is wholly unau*529tliorized) that the courts may search the commission to discover what belief, motive, or opinion controlled the mind of the chief executive and induced him to issue and deliver to the person designated the indicia of office, the utmost that can be said is that Governor Porter aud Governor Gray were influenced by the legislative election to decide in his favor. Grant that this does appear, and so appear that the courts can regard it as evidence, and still it does not authorize the inference that the designation, or appointment, was not that of the Governor. All that can be inferred, awarding to the recital the utmost possible force as evidence, is that the legislative election influenced the two Governors, from whom Peelle. holds commissions, to designate him for the office, for upon no principle of law or logic can it be assumed that those high officers yielded their official prerogatives to a void and dead legislative declaration. Those officers were bound, by the strongest and highest considerations that can influence men, to exercise their judgment, and to maintain the executive independence; and it must be assumed that they did their sworn duty, and did exercise their judgment. Either this must be true, or else it must be true that two of the highest officers of the State weakly yielded to legislative usurpation, and inexcusably surrendered their executive independence. But, more than this. If it be adjudged that the commissions were issued by the Governors because the Legislature bade them do it, then it is affirmed that two of the Governors of the State were ignorant of a principle of constitutional law and yielded, not to an actual command, but to a legislative declaration having not one spark of vitality. If it be conceded that the courts may search for evidence to prove what opinion, belief, or motive operated upon the mind of the Governor, it is much more reasonable to assume that the executive judgment simply coincided in the legislative selection or designation, and united with the Legislature in designating the person who should fill the office *530than it is to assume that the Governor yielded to an invalid statute, and acted simply as the passive agent of the Legislature. The assumption suggested as the reasonable one leads to no unjust or evil consequences, attributes no ignorance to either of the Governors, nor imputes to them any violation of duty, whereas the assumption that the recitals in the commission show that the Governor issued the commission solely because of the legislative election convicts the chief executive of the State of ignorance of constitutional law, or else of a wilful violation of duty and an indefensible surrender of a high prerogative, and in either event leads to evil consequences.
To construe the recitals of the commissions as evidence of a breach of duty by the Governor, or of ignorance on his part, is a wide stretch of judicial authority, and, certainly, no such construction should be resorted to where, as here, it is reasonable and natural to infer that the Governor yielded to the influence of the legislative election, not because it coerced him, but because it persuaded or convinced him that the choice or selection was a proper one. It is neither unusual nor improper, as every one knows, for the Governor to consult other officers or citizens, and recommendations are often made to the appointing power in behalf of applicants for office. This is illustrated by the cases where postmasters are designated by an election held by the people, for, while such an election may influence the President to make the appointment, it does not coerce his judgment, and if he should recite in his commission that the person so chosen was appointed because of his election, we suppose no one would think of questioning the validity of the appointment. We have no more right in this instance to assume that the election by the Legislature coerced either Governor Porter or Governor Gray, than a court would have to assume, in the case supposed, that the election by the people had coerced the President.
If we are to strictly adhere to the words of the commission, and regard only the letter of the instrument, then the *531commission given Peelle by Governor Porter is conclusive, for it is written therein that “ in the name and by the authority of the State aforesaid I do hereby appoint and commission William A. Peelle, Jr., chief of the bureau of statistics.” If the recitals control, then, it is impossible to deny that Governor Porter did appoint Peelle to the office.
Under the appointment made by Governor Porter, Peelle was inducted into the office in 1883, and he continued in office undisturbed until this action was brought, nearly seven years afterwards. For almost seven years he has been in office, and it seems to me very doubtful whether, after such a lapse of time, any one can be heard to aver that, when Governor Porter appointed him, there was no vacancy. I am, at all events, thoroughly convinced that the relator can not question the action of Governor Porter. To aver that there was then no vacancy is to aver that Governor Porter was ignorant of the law. And it is more, for it is to aver that for more than six years all of the executive, legislative, and administrative officers of the State were ignorant of the fact, if it be fact as assumed, that Peelle was a usurper. But still more than this, Mr. Conner, who, it is assumed, was the incumbent when Peelle was appointed by Governor Porter, yielded the office without objection, and asserts no title, for the title is here asserted by one who claims through an appointment made more than six years after the appointee of Governor Porter had taken possession of his office. I know of no authority, nor of any principle, that will authorize any court, or any officer, to sit in judgment on the action of Governor Porter at the demand of one whose sole and only claim to the office is an appointment made six years and more after Governor Porter’s appointee took possession of the office.
ETor do I believe that it can be justly asserted that from the time Mr. Conner yielded the office it has been vacant. When Peelle entered the office, six years ago and more, under Governor Porter’s appointment, the vacancy was filled, *532or else Mr. Conner is still the officer de jure. That it was in fact filled no one will deny. That it was so in law is my firm conviction. It may be true that when Governor Porter appointed Peelle there was no vacancy, but when Mr. Conner yielded the office, as it is asserted he did do, there was a vacancy, and this vacancy was filled by Mr. Peelle’s entrance under Governor Porter’s appointment. As the sole power of appointing was, at that time, in Governor Porter his commission operated to place Peelle in office as soon as the vacancy occurred, and Governor Gray’s commission continued him there. It may be true (it is immaterial whether it be so or not) that if Peelle’s right had been challenged by Mr. Conner, or if Governor Porter had commissioned another, Peelle could not have rightfully held the office under Governor Porter’s commission, but however this may be, it can not be true that what occurred under executive sanction, twice manifested, more than six years ago, can be reviewed at the suit of one whose claim is founded on a commission only a few months old.
It is assumed that Mr. Conner abandoned the office, and if, therefore, it ever became vacant it became so when Mr. Conner abandoned it in 1883, if he did abandon it, and at that time the Governor of the State had an unquestioned right to fill it, and Governor Porter did attempt, at least, to fill it by appointing Mr. Peelle, and the only person who could legally complain was Mr. Conner, for if Peelle’s appointment was invalid, then Mr. Conner, by force of the constitutional provision which rules the question, held over, and he only was wronged.
In this case the relator has the burden of establishing two things: First. The strength of his own title, and Second. The weakness of Peelle’s, and if he has weakened Peelle’s title it is because he has shown that Mr. Conner was entitled to the office, and has thus shown that he has himself no title. He is “ hoist by his own petard.” If, as the argument of the relator assumes from beginning to end, the two Gov*533ernors who issued Peelle’s commissions were mistaken as to the law, then, so we must presume, was Mr. Conner, and if he was he did not abandon the office, and he it is, who is now, upon the relator’s own theory, entitled to the office. If Peelle by virtue of the unconstitutional statute under which the Legislature assumed to elect him has kept any person out of office it is Mr. Conner and not Mr. Worrell. If Mr. Conner were here claiming the office there would, to my mind, be much more difficulty in vindicating Mr. Peelle’s claim, for if an officer yields to a law believed at the time by the executive and legislative departments of the government to be valid, and is by it coerced out of office, he can not be adjudged to have abandoned the office. But it is doubtful whether it would be competent, even at the suit of Mr. Conner, to reach back over a period of nearly seven years and review the action of Governor Porter; it is, however, quite clear that it is not competent to do it at the suit of the relator who was a stranger until May, 1889.
If Peelle wrongfully put any one out of office by entering into it, that one was Mr. Conner, and if there is any one who has a claim to the office, except Peelle, it is Mr. Conner. If there is and has been no vacancy in the office it must be for the reason that Mr. Conner was never rightfully ousted, and if there was no vacancy when Governor Porter and Governor Gray acted, there was none when Governor Hovey issued the commission to Mr. Worrell, six years later.
It is inconsistent to assert that Governor Porter and Goyernor Gray were coerced into putting Peelle into office and keeping him there by the legislative election, and that all they did was to obey the direction of the Legislature, yielding to it their own judgments and surrendering their own high constitutional prerogatives, and yet hold that Mr. Conner, in yielding to coercive measures that controlled the highest officers of the State, voluntarily abandoned an office to which he was of right entitled. To me it seems illogical to assert that the two Governors were so constrained by leg*534islative action that they did not exercise their free judgment and constitutional rights, and yet hold that a subordinate officer, who yielded to the same action of the Legislature, acted of his own free will and uncontrolled judgment and voluntarily abandoned his office.
If Conner did not abandon the office he is still the de jure officer, and if he is, the appellant’s relator has not the shadow of a claim. Conner did not abandon the office if he merely yielded to the same power which, as the relator asserts, controlled and coerced Governor Porter, and left the office because he was forced by law to do so. It is impossible to conceive how it can, with consistency, be asserted that there was no vacancy in 1883, because Mr. Conner was the officer de jure, and yet be asserted that as Mr. Conner was forced out of the office in that year it lets the relator in six years later.' Nor is it easy to conceive any rational theory upon which the relator can lay hold of Mr. Conner’s rights to defeat Peelle, for as Mr. Conner is not before the court no question as to him can be determined, and, certainly, no right of Mr. Conner’s can be made available to the relator who had not the remotest connection with the case until six years after Peelle, as the relator now claims, wrongfully asserted title against Mr. Conner.
The case seems to me very clear upon principle, but authorities are not wanting.
That executive powers and duties are beyond review by the courts is fully settled. Smith v. Myers, 109 Ind. 1, and authorities cited p. 7.
That the commission of an officer who, as is true of this case, has the sole and exclusive appointing power, is a conclusive expression of the judgment of the officer invested with that power, is affirmed in strongly reasoned cases, and, so far as I have been able to ascertain, is denied by none. In a case where the officer having the sole power of appointment, erroneously supposed that he must act upon the action of a legislative body, the court said : “ The essential thing *535is the fact of appointment. That might have been contained in a letter addressed to the persons appointed, or to the public. If the paper was signed for the purpose -of making or evidencing the appointment, all the rest is mere matter of form and unimportant.” People, ex rel., v. Fitzsimmons, 68 N. Y. 514. In another case the court said: “ In such a state of the case it is only necessary that the person claiming the office shall show that the officer haying the power to appoint has exercised that power and decided in his favor.” Hoke v. Field, 10 Bush, 144 (19 Am. Rep. 58).
That there is no abandonment of a public office where the person yields it in deference to a statute which is afterwards declared to be unconstitutional, is adjudged in the very strongly reasoned case of Turnipseed v. Hudson, 50 Miss. 429 (19 Am. Rep. 15), where the authorities are collected and ably reviewed.
That the law is that if Mr. Conner did not abandon the office by yielding to an unconstitutional statute, the implied or express declaration of Governor Porter or Governor Gray did not, and could not, create a vacancy is settled by our own decisions. Board, etc., v. Johnson, ante, p. 145; State, ex rel., v. Harrison, supra.
Whatever view may be taken of this case it seems clear to me that the relator has no title to the office, and if he has not, then there can be no question as to the correctness of the judgment of the trial court. Whether Mr. Peelle or Mr. Conner is entitled to the office is a much more doubtful question than the question presented by the relator’s assertion of title.
Mitchell, C. J., concurs in the opinion of Elliott, J.