concurring. This case presents for adjudication a pure question of law, — the'constitutionality or unconstitutionality of the Act approved the 19th March, 1857, entitled “ An Act relative to elections in the parish of Orleans.”
The answer contains a general allegation of unconstitutionality, without referring to the constitutional provisions which are supposed to be invaded; but these have been pointed out on the argument and in the brief of defendant.
I. The Constitution guarantees the right of bail by sufficient sureties, unless for capital offences where the proof is evident, or presumption great, or unless, after conviction for any offence or crime punishable with death, or imprisonment at hard labor. It further provides that “ the privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it.” Art. 104.
The Act of 1857 expressly recognizes the right of any party arrested, to the full benefit of the writ of habeas corpus, and carries out faithfully the provisions of the organic law in that respect. Such being the case, it is somewhat strange that this should be set up as a matter of grievance. Acts 1857, p. 280, § 26.
IT. The 58th Article of the Constitution requires all commissions to issue in the name and by the authority of the State of Louisiana, to be sealed with the State seal, and to be signed by the Governor.
It is objected that, by virtue of sections 22 and 27 of the Act of 1857, the deputies, instead of being commissioned by the Governor, derive their appointment from the Superintendent.
The Article 58 must be interpreted with reference to Article 47, which provides that:
“ He (the Governor) shall nominate, and by and with the advice and consent of the Senate, appoint all officers whose offices are established by this Constitution, and whoso appointments are not herein otherwise provided for; provided, however, that the Legislature shall have a right to prescribe the mode of appointment to all other offices established by law.”
The office of deputy of elections, conceding it to be strictly an office, is not established by the Constitution, but by statute. The Governor, consequently, is not called upon, under the provisions of the organic law, to commission the deputies of the Superintendent of Elections.
III. ‘‘ Vested rights cannot be divested, unless for purposes of public utility, and for adequate compensation previously made.” Art. 105.
The defendant contends, that this Article is violated by the 14th section, which provides : “ That no grog-shop, or'place where liquor is sold, shall be used as an election poll in the parish of Orleans; but the said Board is hereby authorized to use for that purpose any building belonging to the city of New Orleans or parish of Orleans; or, if necessary, to rent proper buildings for the occasion.” Acts 1857, p. 277, §14.
*358This objection presents no serious difficulty. In the first place, the statute does not divest the vested rights of the parish or city in the premises. In the second place, it is optional with the municipal authorities, and not obligatory upon them, to permit these buildings to be used; aud if they object, then, under the terms of the statute, the Commissioriers may, “ if necessary, rent proper buildings for the occasion.” And, in the third place, if this feature of the law were unconstitutional, the defendant’s remedy would be, to resist the action of the Commissioners when the latter would attempt to - carry out the obnoxious provision, and not, after acquiescing, to assail the whole Act in every other respect.
IV. It is contended “ that the Act relative to elections in the parish of Orleans, is unconstitutional, because it confers upon the Attorney General of the State, police and executive powers; whereas, by the Constitution of the State, the powers of that functionary belong properly to the judiciary department of the government.” We are referred to Articles 1, 2 and 14, upon this subject-matter.
It is true that the offices of Attorney General and of District Attorneys are classed under title IV, Judiciary Department; but the first Article under this title is explicit: “ 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.” Art. 61. See also Arts. 16 and 124.
The Coroner and the Sheriff are also classed in the same title with the Attorney General.; and yet it has not occurred to any one that they are judicial officers. They are, on the contrary, essentially executive officers. And, with regard to the Attorney General, although his functions are to represent the State in civil and criminal causes, he is not a Judge by any means, but an executive officer. The only judicial stations known under our system of laws, are the Supreme Court, the inferior courts established by the Legislature, Justices of the Peace, and the Recorders and Municipal Judges in the city of .New Orleans.
V. Next comes the charge of unequal taxation, from the fact that the statute requires the city of New' Orleans to pay one-half of the expenses of her elections, and the State the other half.
Each parish in the State pays its own election expenses, without contribution from the city of Now Orleans, and contributes rateably to the payment of one-half the latter’s election expenses. The inequality of taxation is not a burden to the defendant, but to the State at large. Acts 1855, p. 414, $ 36.
VI. The defendant contends, that the statute “ deprives the city of New Orleans of the powers of police government vested in her by the Constitution; that it bestows upon an officer styled Superintendent, and a force of his own selection, the exclusive power of the administration of the police of the city of New Orleans, on days of election.”
The views expressed upon this point, as u'ell as upon the question of unconstitutional taxation, in the opinion prepared by Mr. Justice Land, are conclusive upon these matters.
The city of New Orleans, alike all other municipal corporations, is the creature of the legislative will. The only constitutional prerogative vouchsafed to her, is 11 the right of appointing the several public officers necessary for the administration of the police of said city, pursuant to the mode of elections which shall be prescribed by the Legislature.” In this instance, the city derives its right or capacity to stand in judgment from a charter or Act of incorporation passed by *359the Legislature since the adoption of the present Constitution. But, conceding that, by implication, this grant of powers must be considered as flowing effectually from the fundamental law, it does not follow the less that the city can exercise these lights, only “pursuant to the mode of elections which shall be prescribed by the Legislature.” So that, under the very provisions of Article 124 of the Constitution, the power of the Legislature is paramount to those of the Municipality, upon the subject of elections. The latter cannot enjoy the right recognized in this Article independently of the action of the Legislature :■ — -this must be “ pursuant to the mode of elections which shall be prescribed by the Legislature.”
Hence, the right of the Legislature to pass the Act regulating elections in the city of New Orleans.
The question as to the policy and propriety of the Act regulating elections in the city of New Orleans, is not before this court; and it is obviously not within its province to enquire into the charges preferred by the defeudaut: “ that the Act of 1857 is the offspring of an evil spirit against the city of New Orleans ;— that it punishes the many for the acts of the few, and pronounces an unnatural and false judgment of infamy and degradation against the law-abiding inhabitants of a great city.” Our task is performed when we have determined the question of conflict between this statute and the organic law.