dissenting. The judgment of a court without jurisdiction rations materice is a nullity so absolute it need not be pronounced.. The court will notice the want of jurisdiction exqjrojprio motu.
It is well settled that an intervention is not allowable where the party seeking to intervene would have no separate cause of action against either or both of the litigants, or where he has no claim to the immediate object of the citation.
The immediate object of the litigation in the case before us is to determine the title to the offices of the returning board of election, under act No. 100 of the acts of 1870.
The controversy is between the relators and the defendants for these-offices.
A. P. Field, who intervenes and brings up this appeal, does not claim the offices in dispute. He holds the office of Attorney General; and as neither the relators nor the defendants set up claim to his office, or attempt in any manner to impede the administration thereof, he has-no cause of action against either of them.
*15He, therefore, has no right to intervene, because the law will not. allow a party to thrust himself into a litigation he would be prohibited from instituting for himself. The object of interpleading is to abridge-litigation and avoid the multiplicity of suits.
Having no cause of action agiinst either of the litigants and not-claiming the offices in dispute, how can A. P. Field interplead, and by appealing protract a vexatious litigation dropped by the original parties ?
Such pleading is not allowable in ordinary suits.
But this is a proceeding under the intrusion act to determine whether-the relators or the defendants are entitled to the offices of the returning board of election, under the act of 1870.
The law provides that suits of this character must be brought in the name of the State on the relation of the District Attorney or the Attorney General, against the party accused of intruding into or unlawfully holding an office; that the name of the person claiming to-be rightfully entitled to said office may be joined as plaintiff with the State, and that when the intrusion is made apparent the court may decide the defendant to be an intruder, eject him from office, and order that the person joined with the State as plaintiff may be inducted into office. Acts of 1868, pages 71 and 199.
No provision is made for an intervention in a suit of this kind, and in my opinion it is not allowable.
If a controversy for a certain office be settled improperly under a proceeding of this character, and the person inducted into office is not entitled to it, as against a third party who was not joined as plaintiff' with the State, the rights of such third party are in no manner impaired. He can by mandamus, if necessary, compel the District Attorney or the Attorney General to institute, in his behalf, a proceeding in the name of the State, under the intrusion act, and have his title to the office established and the previously successful litigant ejected therefrom. After the time for contesting the eh ction has-passed, the only suit to establish title to office that can be brought, is a suit under the intrusion act, and that as before remarked must be brought in the name of the State. The State, as before remarked by this court, must take the initiative; no one can litigate for office,, under that statute, in his own name. And if a person can not in his own name bring an action for the office he claims, how can he accomplish the same object by filing a petition of intervention in his own name, setting up his separate demand?
As I understand the intrusion law no one will be allowed to demand an office in this State in a proceeding in his own name, whether he pleads directly in a separate action, or whether he interpleads in an action between other parties.
*16Whenever he sees fit to set up his demand for an office the statutes to which I have referred prescribes the precise form or mode of procedure in which he must bring that demand in order that the ■court may decide the title to the office.
If the State under the intrusion law must be the prominent litigant ■and no demand for office can be set up except in the name of the State, how can there be an intervention 9 Can the State intervene in her •own suit 9 Can the State suing for A set up a separate demand in her ■own suit in behalf of B ? Can the same party be both plaintiff and intervenor in the same suit ? Such a proposition to a legal mind is utterly absurd. But, then, how are the rights of several persons claiming a particular office to be determined without numerous suits, which the law abhors. The answer is plain and simple. It is found in section nine of the intrusion law, being act No. 58 of the acts of 1868. It is in these words: “ That where several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons in the same action in order to try their respective rights to such office or franchise.”
Here, then, to simplify pleading and to settle conflicting titles to office, the State has enacted a law by which she can in her own name, in one action, sue all the claimants to the office in dispute, and in the same action “ try their respective rights to such office or franchise.” From the very language of the law it is apparent that no interpleading was contemplated by the law-giver. And, indeed, under the statute it could not be done, because, as before observed, the State alone can bring the suit and she can not, in the same action, occupy two contradictory positions, that of plaintiff, the prominent litigant, and that of intervenor, a third party, a stranger to the suit. Is it doubted that the State is the real litigant in suits under the intrusion law 9 I point to the State v. Kreider, 21 An. 482, and numerous other decisions wherein this court has so often affirmed it; and I refer to the statute itself.
It is well settled that in a contest for office the pecuniary interest involved is the amount of the salary.
In the suit before us there is no salary at all. Consequently, as between the original parties, the matter in dispute does not exceed $500, and this court is without jurisdiction ratione materia.
To ascertain the jurisdiction of this court it is idle to discuss general principles, or to cite the adjudications of the Supreme Court of the United States, because it does not spring from such sources. The jurisdiction of this court is limited and defined in precise terms in the Constitution of this State, the instrument creating it, and beyond these limitations we can not go without usurpation.
This court has only appellate jurisdiction, ‘(which shall extend to all cases where the matter in dispute shall exceed five hundred dollars.;” * * * Article 74, Constitution of 1868.
*17Bat the intervenor and appellant contends that as his salary of Attorney General is $5000, he has a pecuniary interest in this litigation exceeding $500, and therefore the court as to him has jurisdiction. For argument let us assume that this is so. We then have the anomaly of a jurisdiction as to one litigant and no jurisdiction as to •the others, and positively no jurisdiction as to the offices in controversy, the immediate object in dispute, and of the litigation.
The matter in dispute between “ A” and “B” — the very object of their litigation has a pecuniary value less than five hundred dollars; neither can appeal to this court for want of jurisdiction; the difficulty can be obviated; the judgment below can be revised; all that is necessary is for a third party to aver that as he owns some other object worth five thousand dollars, he has a pecuniary interest in the controversy exceeding five hundred dollars, and therefore can intervene and appeal.
If the doctrine contended for be true, all the cases decided by the inferior courts of this State, including justices of the peace, may in the same manner, be brought before this court for revision. Such a proposition is unreasonable and absurd.
In my judgment the title to an office, the salary of which is less than five hundred dollars, can not be determined by this court for want of jurisdiction ratione materia, it matters not who is the appellant, and it matters not how many affidavits are filed setting up a pecuniary interest exceeding the amount of the salary.
“A third party appealing from a judgment must show a direct pecuniary interest in the subject matter of the suit.” State ex rel. Belden, Attorney General v. Markey, Kaiser, et als. 21 An. 743; 1 N. S. 308 ; 4 N. S. 342; 2 R. 391.
The subject matter of this suit is the title to the offices of returning board of election, under act No. 100 of the acts of 1870, to which offices there is no salary. Therefore neither the original litigants nor the intervenor has a direct pecuniary interest in the subject matter of this suit, and therefore can not appeal, because this court is without jurisdiction ratione materna.
It is therefore my judgment that if an intervention in a case like this were allowable, and if a third party could intervene and appeal from a judgment not appealable by the original litigants (because the matter in dispute is less than $500), the intervenor, A. P. Field, has not shown a direct pecuniary interest in this suit sufficient to entitle him to the appeal or sufficient to give this court jurisdiction.
If he had been joined as plaintiff with the State in this suit, he could not appeal, because the subject matter of the suit is less than $500. The argument, however, is urged that Field has a direct pecuniary interest in this ease, because as the delay for contesting elections *18lias passed (more than ton days after the election having elapsed), he has no other way to vindicate his title to the office of Attorney General-That if the board by whom he was returned as elected was not the lawful returning board, then his title to the office has no basis upon which to rest. Consequently his entire salary as Attorney General is involved in this controversy between the two returning, boards. The answer to this argument is two-fold:
First — The controversy between these returning boards in no way prevented him from instituting, within proper time the usual proceedings to contest the election.
Second — His title to the office of Attorney General ean not now be determined as against H. N. Ogden, his opponent at the election, because the latter is not a party to this proceeding. Besides, in a controversy for one office the title to another office (separate and distinct) can not be determined. A proceeding “under the in'rusion act” can only determine the title to the office in dispute, and no one can become a party to that proceeding who does not claim the immediate object of the litigation.
If A. P. Field, who was returned as elected Attorney General, can. intervene in this controversy, every candidate for office at the late election, every person expecting an office if his party prevails, and every person incidentally or remotely interested in the settlement of the issue, may intervene, and the rights of everybody, the titles to all the offices in the State, may at once be determined, notwithstanding the opponents of these various intervenors were not cited and were not parties to the suit between these returning boards.
An argument that leads to such monstrous absurdities ought not to be accepted by this court as correct.
In the State v. Mason et als., 14 An. 506, where parties not claiming the-offices of mayor and councilmen of Carrollton contested the election of the defendants to said'offices, this court said: “ It appears-reasonable that no one but a person pretending to have a right to an office should be permitted to test the right of the incumbent to that office.”
In Voisin and others v. Leche and others, 23 An. 25, a similar case,, this doctrine was affirmed by this court, the identical language being adopted by Chief Justice Ludeling, the organ of the court.
In State ex rel. Sullivan et als. v. Mount et als. 21 An. 755, where the controversy was between two boards of school directors, and where Kendall, the secretary of one of tie boards appealed, claiming that as his salary was eighteen hundred dollars he had a pecuniary interest in the controversy exceeding five hundred dollars, this court, held that: “In a controversy for office under ‘the intrusion act,’ a-*19third party not holding or claiming the office in dispute, can not appeal from the judgment of the court a qua.”
' There the hoard that appointed Kendall secretary was unsuccessful' in the controversy with the other board of school directors, and could not appeal, because of the want of a pecuniary interest (there being no salary allowed these school directors of the parish of Orleans), Kendall, the secretary appealed and contended that unless his right to appeal was maintained, he would lose his office, affording him a salary of eighteen hundred dollars per annum; that the very basis of his office rested upon the reversal of the judgment in the controversy between these two boards of school directors.
The court held that as he did not claim the offices in dispute (the immediate object of the litigation), Kendall could not “appeal from the judgment of the court a qua.”
Here neither of the returning boards of election have appealed from the judgment in the controversy between them, because having no salary there is no pecuniary interest involved as between them. A. P. Field claiming to be returned Attorney General by one of these boards whose suit under the intrusion act, was dismissed, has appealed and he contends that unless that judgment is reversed and the board which returned him as elected Attorney General is recognized by this court and declared the lawful board, his title to that office has no basis upon which to rest.
■The case presented by him is identical in principle with that presented by Kendall, and should have the same solution. He is a third party, not claiming the offices in controversy, and “ can not appeal from the judgment of the court a qua.” 21 An. 755.
The appellant cites the case of Byerly v. Judge of the Eighth District Court (23 An. 768), to show that a third party having an appeal-able interest may appeal.
. That case is not like the one before the court; Byerly showed a direct pecuniary interest in the matter in dispute.
I deem it proper to remark, however, that there is a feature of that case that I do not approve of. I was not present at the hearing and took no part in its decision.
Whatever comfort it may give the appellant, however, is utterly annihilated in the subsequent final decision of that same case, reported in 24 An. 115.
The case in 12 An. 48, cited to show that a third party may appeal, is wholly unlike the case now before the court. There the property of a third party had been seized and the appeal was from the judgment dissolving his injunction. It being a separate demand, C. P. 398, and the value of the property being sufficient to give this court jurisdiction, there was no error in maintaining the appeal.
*20There are other grounds for dismissing the appeal which I deem it unnecessary to notice, because, to my mind, the argument wnich I have endeavored to make fully maintains the exception of defendants, that A. P. Field has no right to take this appeal. Believing that the case is not within the jurisdiction of this court, and that the decree of a court without jurisdiction ratio tie material is an absolute nullity, I hardly think it necessary to enter upon an elaborate discussion of the issues presented for adjudication on the merits. I will state, however, some of the conclusions forced upon my mind from a careful consideration of these questions.
I believe the Governor had the right to sign the new election law on the twentieth of November, 1872; that it became operative from the moment of the signing, and that it entirely repealed the law creating the offices in controversy, to wit: act No. 100 of the acts of 1870.
That the Governor has the right in this State to sign and approve laws after the session of the Legislature has ended, has often been decided by this court; indeed I regard the jurisprudence settled on this point. But the appellant contends, with some show of plausibility, that when this act was signed (the twentieth of November, 1872), the legislature that enacted the law had passed out of existence (the terms of most all of the members of the General Assembly having expired); that with the cessation of their terms ended all of their unfinished business; that the Governor could not complete by his approval and signature a statute alter its authors had ceased to exist.
This argument is ingenious but unsound. The fallacy lies in supposing that the law-making power had ceased to exist. While our structure of government remains neither of the co-ordinate branches thereof can cease to exist. The legislative, executive and judicial ■departments never cease to exist, although the persons entrusted by the people to administer them often discontinue to do so, because of death, resignation, or the lapse of the terms for which these public functionaries were chosen.
In this State the effect of a repealing law is not always a question of construction.
When a repealing law, like any other law, “is clear and free from ambiguity, the letter of it is not to be disregarded under pretext of pursuing its spirit.” C. C. 13.
It ib only when the law is dubious in its language that its meaning must be sought by construction. C. C. 16.
In my opinion the election law approved twentieth November, 1872, entirely repealed the law of 1870. It devised a new and different way of canvassing the votes and making the returns, and it entirely abolished the offices involved in this controversy. How the incumbents of offices that have heen abolished can pretend to hold over under *21article 122 of the constitution till their successors are inducted into office I cannot imagine.
How can there be an inducting of successors into offices, that do not exist ?
But great stress is laid upon the case of Kreider, 21 An. 482, and it is insisted that the ruling in that case covers this case.
I do not think so. The statute interpreted in that case differed very materially from the one now under examination. There the court held that: “ The thirteenth section of the act of September 14, 1868, repealing the charter of Jefferson, approved March 8, 1867, did not abolish the offices of the corporation. This clause only repealed the old charter in so far as its provisions were not incorporated in the new charter.”
The title of that act was “An Act for revising and amending the charter of the city of Jefferson.” The title of the act only proposed to “revise and amend” the charter. Under cover of such a title the old act could not be abolished, and any clause to that effect would be repugnant to article 114 of the constitution, requiring the objects of every statute to be expressed in the title thereof.
In the Kreider case it was held that the “clause only repealed the old charter in so far as its provisions were not incorporated in the new charter.”
The provisions of that act “ did not abolish the offices of the corporation,” but continued them.
In the statute before us, the offices of returning board in the old law, are not carried over and incorporated in it. Therefore these offices are abolished under the authority of Kreider’s case, which has been produced to show the reverse.
In my judgment, the act approved twentieth November, 1872, is not mere revisory legislation ; but whether it is not, is of no consequence. Because the offices claimed by the relators under the old law are abolished, if not directly at least by implication, because the continuing of said offices is not provided for in the new law and it is inconsistent therewith.
The provision of act No. 100 of the acts of 1870 creating these offices and designating the duties to be performed therein is in conflict with the provisions of the act of twentieth November, 1872, and is therefore repealed.
This was the view taken by this court in the analagous case of the State ex rel. Montieu v. Lavigne, 23 An. 111.
Here, to my mind, another difficulty arises. What judicial effect can the decision have 9 What legal right shall we order to be executed ? A. P. Field can not be put into the offices in controversy, because he don’t claim them. We can not eject the defendants and induct into *22these offices the relators, because the plaintiffs have not appealed from the judgment dismissing- their suit. 1 N. S. 308.
Besides the defendants are not claiming the offices, but contend that they, as well as the plaintiffs, are out of office by reason of the approval of the election law of 1872.
Furthermore, if the approval of said law is not valid, the relators have nothing to contend for, having canvassed and made their returns, notwithstanding the suit, they have exhausted the powers confided to them and they are now functus officio; they are no longer excluded from office. There are other questions which I deem it unnecessary to discuss.
With all due respect for the views of my learned associates who compose the quorum deciding this case, I feel constrained to differ with them in the conclusion to which they have arrived, because I believe their decision is not in harmony with the analogies of our law and the numerous adjudications of • ourselves and our predecessors.
I believe that it practically overrules many important principles and points of practice heretofore deemed settled, and that it is a new departure in the jurisprudence of our State.
For the'reasons stated I feel constrained to dissent in this case.