At the municipal election on 12th March, 1866, of the votes cast for Becorder of the Second District of New Orleans, Arthur Gastinel, the defendant, received 784, Eugene Staes, the relator, 519, and Emile Wiltz 168, making a total of 1471. On tho 19th of the same month Gastinel was commissioned by the Governor as Becorder and Justice of the . Peace ; on the next day he took the oath of office pre- . scribed by the Constitution, and on 31st same month Eugene Staes obtained a writ of quo warranto from the, Sixth District Court of New ■ Orleans, directed to said Gastinel, to show cause why he should not be forbidden, to perform and usurp any longer tho functions of said office, ,§,nd why the relator should not he declared to have been duly elected to said office, on the grounds that the said Gastinel does not possess the qualifications as to age (thirty year's) prescribed bylaw, and that all the votes given for him at said election are illegal and null, and must be considered as not given ; consequently the relator received the highest number of legal votes, and is the duly elected Becorder of said District.
The respondent filed an exception to the petition as commutating two demands contrary to, and exclusive of each other, which was properly overruled as itis not inconsistent with a prohibition to the incumbent for the Court,to render a decree providing for filling the office legally, although it might reject relator’s pretensions. The respondent then answered that he is no usurper of the office, but holds it and that of Justice of the Peace by virtue of his commission and oath of office.
The Court below rendered judgment against the respondent on the first branch of the case, and on the second against the relator as of nonsuit, and both parties appealed.
The respondent contends on appeal:
Í. That, under, a writ of quo warranto, the only issue to be tried is *115whether or not the defendant has usurped the functions of Recorder, and to determine this the Oourt cannot go beyond an enquiry into his title to the office.
2. That the qualifications of the defendant could only be enquired into-by a direct contestation of election, and not by a writ of quo warranto,
3. That by the article 133 of the Constitution of 1864, the duties, functions and qualifications of Recorders seem to have been merged in the office or character of Justices of the Peace and aré subject to no restrictions except those affixed to the eligibility of such officers.
Section 130 of the city charter (Acts 1856, p. 166,) enacts: “That "the right of any Mayor, Recorder or other officer of the city of New Orleans, to Ull the office held by him, may be tested at any time, by any citizen, by a writ of quo warranto, which shall be tried as summarily as possible, both in the-inferior and appellate courts. ” This clearly authorizes the proceeding before us and necessarily involves an enquiry, into the .qualifications, of respondent for the office of Recorder. The law does not confine the enquiry to his right to enter upon the office or the regularity of obtaining it; but permits any citizen by this process, at any time of his term, to test his right to fill the office which he holds.
It is satisfactorily shown, and indeed not denied, that the respondent is under the age prescribed by the 7th section; of the charter (which is still in force and not in conflict with the Constitution,) and he is therefore incompetent in law to perform the functions of Recorder, although he has been elected, commissioned and sworn. These acts do not confer the legal qualificath-n as to age, nor dispense with it. If one qualification can be dispensed with, any and all' others may be, and those fundamental and statutory enactments rehdéred húgatory. The effect of article 133 of the Constitution of 1864 simply to confer on theReeorders the additional powers and functions of Justices of the Peace. They are thereby no less Recorders, but on the contrary théir quality as Justices of the Peace is consequent and dependent upon that as Recorder.
The judgment against defendant is therefore correct.
On the second branch of the case, we cannot however fully concur with the lower Court.
Article 870 C. P., contemplates that, if judgment be against the respondent, the Court shall “direct the eorpord.ion to proceed to a new appointment;” and, in the case of Reynolds v. Baldwin, 1 A. 162, this Court held the legal construction of this clause of said article to be, that such an order shall be made when a new appointment is necessary. Under this interpretation of said article, the District Judge was of opinion that such an order could not be made in this case, because “no other matter outside of the right or authority under which the defendant holds the office in dispute can be enquired into, and the second branch is improperly commutated with the first.”
In our opinion the necessity for such an order is caused by the judgment against the defendant, which creates a vacancy; and by the 15th section of the city charter, this vacancy is to be filled by the joint action of the Boards of Aldermen and Assistant Aldermen.
We cannot adopt the theory of the relator that the ousting of the defendant by means of this proceeding inures to His benefit.
*116What might have been his rights had he contested the election of defendant in accordance with law, we are not called on to say ; but we are of the opinion, that having, as a candidate, acquiesced in the result of that election, we must in these proceedings consider him only as a citizen before us, seeking to have the law enforced against the incumbent, who is the Recorder de fado; and, under the provisions of the 870th article of the O. P. and the 15th section of the city charter, notify the corporation of the necessity of a new appointment.
The law does not authorize us to declare the relator, under the circumstances, to be the choice of the people. Upon his own showing he did n f receive a majority of the -votes cast, and but for some action, on the part of some one authorized, the present incumbent would have continued in the performance of the duties of the office, as the duly elected Recorder of the Second District of New Orleans.
It is therefore ordered that the judgment appealed from be set aside, and it is now ordered, adjudged and decreed that there be judgment against the defendant Arthur Gastinel, forbidding him to perform any longer the duties and functions of Recorder of the Second District of New Orleans, and that he pay the costs of these proceedings in the lower Court. It is further ordered that the city of New Orleans be notified to proceed according to law, to elect a Recorder of said district; the costs of appeal to be paid jointly by the relator and defendant.