dissenting. This record presents to my mind, a case of unconstitutional assumption of power on the part of' the legislative department of the State government.
The first article of the State Constitution declares: “The powers of the government of the State of Louisiana, shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to wit, those which are legislative to one, those which are executive to another, and those which are judicial to another.”
Article 2. “No one of these departments, nor any person holding office in one of them, shall exercise power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”
Article 3. “ The legislative power of the State shall be vested into two distinct branches, the one to be styled the House of Representatives, the other the Senate, and both the General Assembly of the State of Louisiana.”
Article 61. “ The judiciary power shall be vested in a Supreme Court, in such inferior courts as the Legislature may from time to time order and establish, and in Justices of the Peace.”
The Legislature has carried into effect this last article of the Constitution, by establishing courts with various attributes of jurisdiction; to one of which courts so established, the First District Court of New Orleans, it has given authority, by an Act approved 15th of March, 1855, to hear and determine *314contests of elections of Sheriff in the parish of Orleans. “The Judge,” says the Act, section 41, “shall proceed without delay to examine, the grounds of contestation ; and may, on the application of either party, ordo); a jury to try the issue, and its decision thereon shall be final.” And by section 45: “The issue thus formed, shall be proceeded with summarily before court and .jury. The trial shall be conducted and submitted to the jury according to the laws by which other jury trials are governed. A majority only of the jurors shall be required to return a verdict. The jury shall have power to determine by their verdict, which of the parties is entitled to the office; or to refer the same again to the people. The court shall have no power to grant a new trial, as in other cases, and no appeal shall be allowed.”
Section 46. “ The judgment rendered upon the finding of the jury shall be final; and on certifying the same to the Governor, a commission shall be issued by him in favor of the person in whose favor the verdict may be.”
On the 5th of November, 1855, an election of Sheriff W'as held in the parish of Orleans, Joseph Evfty and John If. Bell, being the candidates; and the former being returned elected, the latter contested his election by a petition presented to the First District Court of New Orleans, with the formalities prescribed by the Act of 1855. This contest was tried by a jury, which'rendered a verdict in favor of Evfty, by a majority of seven to five; and judgment was therefore rendered by the court, “ that Joseph Evfty is declared to be the Sheriff elect of the parish of Orleans, and is entitled to enter upon the discharge of the duties of Sheriff, upon complying with the formalities prescribed by law.
Upon this judgment being certified to the Governor, he issued a commission of Sheriff to Evfty, dated December 81, 1855.
The grounds upon which Bell contested the election of Svfty, were eleven in number, being specifications of illegal acts and decisions of the commissioners of election in refusing to receive legal votes; and acts of violence in destroying the ballot boxes and scattering the votes, committed by bands of lawless men, at the polls.
We have seen that the special tribunal created by law for the trial of such an issue, a judicial tribunal, composed of a Judge and jury, did judicially investigate and decide upon all the facts of illegality and violence alleged to have taken place at the election of Sheriff in the parish of Orleans, on the 5th of November, 1855, and that its decision in the premises is, by law, final and without appeal.
In the language of the second article of the Constitution, the power of deciding the question of the legality and validity of Sufty's election as Sheriff, the question raised by the opposing candidate, Bell, assisted by twenty voters, was a power properly belonging to the judicial department of the government. This proposition is beyond all question. It follows, therefore, of necessity, that neither of the other departments of the government (legislative or executive) could constitutionally exercise that power, unless the direction or permission to do so, can be found in the Constitution itself. A careful scrutiny of that instrument in all its articles, has failed to show me any thing indicating such a direction or permission. I am clear that the 97th Article neither directs nor permits anything of the sort. I admit that that article authorizes the removal of a Sheriff by an address of a majority of the members of both Houses, for the Sheriff is certainly a civil officer, and I do not understand the *315Act No. 304 (page 370) of the Session Acts of 1855, as having imposed any restraint upon the action of the General Assembly, ¶ropi'io motu, in the way of address. The provisions of that Act seem to be intended for the case of accusations preferred by individuals against public officers, in the form of a memorial addressed to the Legislature; which accusations, after the observance of certain rules of proceeding in the Act set forth, may result in an impeachment or in an address, as the Legislature shall determine.
The Act was undoubtedly intended to carry out the articles of the Constitution on the subject of impeachments, and the removal of public officers from office generally. But I do not find in it, any provision to the effect, that every address for the removal of an officer, must be preceded by those formalities which are therein indicated as essential to be pursued upon a memorial presented to the Legislature, and containing accusations against a public officer.
But while I make the admission that the Legislature has power to remove a Sheriff by address, proprio motu, without any accusation preferred by memorial against the-officer removed, yet I repeat that the Article 97 does not authorize the Legislature to hear evidence upon, and decide judicially, the legality or validity of an 'election of Sheriff. And this is what the Legislature has done in the case at bar.
At the risk of appearing tedious, I 'will repeat the whole of the preamble, which constitutes what may properly be called “ The Address,” being introductory to the resolution for the removal of Hufty, and containing the reasons justificatory of such removal.
“ Whereas, freedom of suffrage and the inviolability of the ballot box are the only' basis of republican government; and whereas, this great palladium of American liberty has been overthrown and trampled under foot at the late general election held in New Orleans, on the 5th of November, 1855, whereby the free expression of the popular will has been illegally suppressed by partizan Commissioners of Election, who arrogated to themselves the power to disfranchise legal voters, and by bands of lawless men, who not only drove peaceful citizens from the polls, by intimidation, violence and bloodshed, but even, after the polls had been closed, destroyed more than thirteen hundred legal votes which had been received during the election by the Commissioners, to-the truth of which outrages the' whole population of New' Orleans bear witness ; and whereas, these facts have been brought to the knowledge of the Legislature by judicial investigations, and by executive communications; and whereas, the late Governor of this State has urged the Legislature to ‘ crush the evil at once, and before it has taken root, by the most pointed and energetic means’; and w'hereas the Legislature is constituted by the organic law the grand inquest of the State, for the protection of the elective franchise from tumult, violence and other improper practice, and .to vindicate the constitutional rights of the people, rising above and not the subject-matter of ordinary judicial investigation, but totally independent of, and not to be confounded with, individual claims to office; and whereas, the 97th Article of the Constitution declares, that 1 all civil officers, except the Governor and Judges of the Supreme and Inferior Courts, shall be removable by an address of a majority of the members of both Houses, except those, the removal of whom has been otherwise provided by this Constitution1'; and whereas, a Sheriff is a civil officer, whose removal is not otherwise provided for by the Constitution; and whereas, it has been indubitably established to the satisfaction of this Legisla*316ture, that the constitutional rights of the citizens of New Orleans have been' grossly violated in the late election for Sheriff of the parish of Orleans : Be it Resolved,” &c.
It is said, that the Supreme Court has nothing to do with the reasons contained in the address for-the removal of Hufty; that for the decision of this issue, it suffices, that- the -'Legislature has a constitutional right to remove a Sheriff by an address of a-majority of both Houses; that as well might it be contended, a decree of the Supreme-Court, in a matter within its jurisdiction, is invalid, because the reasons given by the court for its decree, may happen to contain bad logic or bad law. But with all deference to those who entertain such an opinion, and professing what I truly feel, a profound respect for the legislative branch of the government, yet I cannot forget that it is the peculiar province of this tribunal, to-expound in the last resort, those rules of action apd acts of administration which; 'are contained in the statutes promulgated as the expression of legislative will in - the State of Louisiana; to determine if, at any time, the consistency -of such- enactments with the State Constitution be drawn into question, whether in-truth they are in contradiction; and in case they be, to pronounce that the statute must yield to the Constitution, as the paramount law.
The Supreme Court of the United States, in. a case in 3d Dallas, to which I will have occasion again to refer, have said, that the State courts are the proper tribunals to decide, whether laws contrary. to the State Constitution are void.
In the present case, the-unconstitutional! ty of the address removing the defendant from office, is expressly pleaded; and is in fact the only matter at issue. To determine this plea, weomust needs examine the address itself. And as this is the first occasion-of-the exercise of the power of removal of an officer, by address, under this Constitution, we are without precedents to guide us in the-construction of the-article-of the-Constitution, in virtue of which the removal is said to have been -made,-and'which is copied into the address. The first thing that strikes me in Article 97, is that the address and the removal are simultaneous. The words used are, “shall be removable by an address.” It is not, as in the Article 73, the -Governor, who is to remove upon an address of the Legislature,; but the General. Assembly itself removes the officer. The removal is strictly an Act of the Legislature, under this article. And it is plain, that the Legislature have, in the case before us, taken this view of the article. ¡Eor the address, after the preamble copied above, proceeds to remove Svfty from office by resolution. -By a second resolution, indeed, it is directed that the address be-presented to the-Governor. But this, I understand to have been done in compliance with-Article 5i of the Constitution, which requires that'" every order, resolution or vote,-to which the concurrence of both Houses may bcmeccssary, except on aiquestion -of adjournment, shall be presented to the'Govern or, and before it shall take effect, be approved by him, or being disapproved, shall be repassed by two-thirds of the members elected to each House-of the Gen eral-Assembly.”
The^address under the Article -97- of the Constitution is, therefore, neither more nor less, than an ordinary Act of the Legislature; and the form of an Act of Assembly, which is the one adopted on this occasion is, in my opinion, the-correct form of an application of the Article 97 of the Constitution. Why, then, has tho-peculiar appellation of “ address” been used by the framers of *317our Constitution in this article ? Here, again, I think the Legislature has correctly interpreted the meaning of the article. The order, resolution or vote, for the removal of an officer, is something more than “sievolo, sic jubeo ; sit pro ratione voluntas.” It is a solemn manifesto by the Legislature to its constituents, of the causes which have moved it to take the extraordinary step of abridging the term of office of one who has seemed worthy to his fellow citizens, of being selected to discharge the duties and receive the emoluments of a post of honor and profit in their service ; a declaration of motives, which it must be presumed the Legislature will never bé either afraid or ashamed to make, which is in thorough consonance with the spirit of our institutions, and which is due as well to that portion of the people who have given their votes at the election of the officer, as it is to the officer removed himself. Let us not be told, that because, in this country, a man has no property in an office, it is, therefore, unnecessary to give any reason for depriving him of it. I should be loth to admit that any man, by accepting office under our government, has degraded himself so far below the level of his fellow citizens, that when disgraced by the infliction of a penalty which implies dishonor, or impoverished by the sudden withdrawal of an income upon which he had good reason to calculate for some time to come, he shall have no right to be informed in what he has sinned, or in what respect ho has been found wanting.
Such is not the meaning- of the 97th Article of the Constitution; neither is such the interpretation which the Legislature have given to it on this occasion. Their act is truh' an “ address” — a declaration to the world of the motives of their proceedings.
We know, then, from the most authentic source, what were the reasons for defendant’s removal from office by the Legislature. And I agree that, unless those reasons exhibited an unconstitutional assumption of power, they could not bo the object of examination before this court. The exercise of judicial power by the Legislature, is unconstitutional, except in the instances expressly directed or permitted in the Constitution.
Have the Legislature exercised judicial power in this instance?
The address sets forth the rejection of legal votes by the Commissioners of Election, and the destruction of the votes which' were received, by bands of lawless men. These were the identical specifications on which the relator had already contested the election, before a tribunal whose decision, by a statute yet unrepealed, was final. I find in this, ah interference with the legal course of proceedings of the regularly constituted judiciary of the State, and an appellate jurisdiction claimed and exercised by the Legislature.
That the jurisdiction thus exercised, is judicial in its character, evidently appears from the statement of the address, that the facts stated “ have been brought'to the knowledge of the" Legislature by judicial, investigations.” That the power exercised was a judicial power, is furthermore formally enunciated in the declaration of the address, that the Legislature is constituted by the organic law the grand inquest of the State, for the protection of the elective franchise from tumult, violence and other improper practice. The French text of the address is still more expressive — Q-rande Oour A'Ehqucte” ; and as the Article 129 of the Constitution requires the laws to be promulgated in the Erench as well as the English language, the-French text is not to bo left out of view, in ascertaining what is the meaning of "the Legislature.
Is it then true, that the Constitution has made the Legislature a grand in*318quest, or Court of Enquiry, for the protection of the elective franchise from tumult, violence, and other improper practice ? Not so. The 98d Article of the Constitution says: “The privilege of free suffrage shall be supported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence therein, from power, bribery, tumult, or other improper practice.” This Article of the Constitution has been executed by the adoption of the Act relative to elections, approved 15th of March, 1855, (Session Acts, p. 408,)and of the Act relative to Crimes and Offences, approved 14th of March, 1855. Session Acts, p. 130. Proceedings under both these statutes, are carried on before the ordinary judicial tribunals of the State. The 74th section of the Act relative to Crimes and Offences, punishes violence and riots at elections, and I do not understand our predecessors as having decided, in the cases of Rice v. Dubvys, and Borgstede v. Glarlr, in 5th Annual, as is contended by the counsel for the relator, that the verdict of the jury in a contested election under the Act of 1840, (from which the Act of'1855 is copied,) was not final in regard to the validity and legality of the election.
The learned counsel of the relator, has also referred to two decisions of the Supreme Court of the United States, The Baltimore and Susquehannah Railroad v. Nesbit & Goodwin, 10 How., 395, and Calder v. Bull, 3 Dallas, 386, in support of the constitutionality of a review b}r the Legislature of a State of a judgment rendered by the courts of the State. But an enunciation of those decisions will show tnat they constitute no authority in the present case. In that from 10 Howard, indeed, the only point presented by the plaintiff in error was, that the statute of Maryland complained of, divested vested rights and impaired the obligation of a contract. The court indulged, it is true, in some remark, arguendo, upon the distributions of powers, legislative, executive and judicial, in the Constitutions of the several States, as a matter not to be inquired of except by the State authorities; but it concludes those remarks by declaring that “no such inquiry regularly arises upon this record” ; and the unqualified proposition stated by the reporter in his head notes of the case, “ the States have a right to direct a rehearing of cases decided in their own courts,” does not appear warranted by anything in the decision.
As to the case from 3d Dallas, which is a very remarkable case, as being the leading one upon the definition of the phrase “ expost faeto law” in the Constitution of the United States, it was certainly decided therein, that an Act of the Legislature of Connecticut, granting a new trial upon a judgment of a Court of Probate of that State, refusing probate of a will, was in conformity to the Constitution of that State, which was then (in 1798) nothing more than a royal charter of Charles the Second of England. The following is the language of Mr. Justice Iridell upon this subject: “From the best information to be collected relative to the Constitution of Connecticut, it appears that the Legislature of that State has been in the uniform, uninterrupted habit of exercising a general superintending power over its courts of law, by granting new trials. It may, indeed, appear strange to some of us, that in any form, there should exist a power to grant, with regard to suits depending or adjudged, new rights of trial, new privileges of proceedings, not previously recognized and regulated by positive institutions; but such is the established usage of Connecticut, and it is obviously consistent with the general superintending power of her Legislature.”
*319Prom these remarks, it will be seen that the difference between the Constitution of 'Connecticut in 1798, and that of Louisiana in 1856, is simply this : that the former sanctioned the reversal of a judgment of a judicial tribunal by the Legislature, and the latter prohibits such a reversal. Por the same reason, therefore, that the statute of Connecticut was held to be valid, the address for the removal of the defendant should, in my judgment, be held to be void and of no effect.