dissenting. I dissent from a majority of the court.
A motion to dismiss this case is made on the following grounds, to wit :
Mrst — That the judgment rendered by the judge a quo did not require signing and can be appealed from only within ten days from rendition.
Second — That no judgment rendered by the judge of the Eighth District Court could be signed by the judge of the newly created Superior Court.
Third — That the portion of the act creating-the Superior Court which authorizes the appointment of the judge is unconstitutional and therefore Lynch, the judge of the Fourth District Court, could not act for Hawkins, the appointed judge of the Superior Court, who recused himself.
Fourth — -That A. P. Field, Attorney General, has no interest which allows him to appeal.
Fifth — That the Returning Board, defendant, has acted and is functus officio.
Sixth — That the appeal is made returnable January 6, 1873, from a judgment signed second January, 1873, the usual period of citation being ten days, the law requiring the appeal to be returnable in ten days.
*23Seventh — That the judgment appealed from was not signed at the instance of the defendants, and if this fact is denied, the case should be remanded to ascertain the truth, that the court was only authorized to sign the judgment upon application of the party in whose favor it was rendered.
The facts of the case necessary to decide the motion to dismiss are:
That tl.e suit was dismissed by the judge of the Eighth District Court because a new law, approved November 20, 1872, No. 98, entitled “An Act to regulate the conduct and to maintain the freedom and purity of elections; to prescribe the mode of making returns thereof, to provide for the election of returning officers and defining their powers and duties; to prescribe the mode of entering on the rolls of the Senate and House of Representatives; and to enforce article one hundred and three of the constitution, repealed the election law of 1863, and as there is no existing Returning Board” there can be no party to complain and appeal.
A brief history of the case is essential to a clear understanding of the law applicable to the motion to dismiss — the sole question now •under discussion.
The petition alleges that Jack Wharton, E. H. Hatch and Durant Da Ponte are pretending to be returning officers and are interfering with plaintiffs, Warmoth, Herron, Lynch, Longstreet and Hawkins, in the discharge of their duties.
The above named five persons — four only of whom are shown to be ' plaintiffs — are the real plaintiffs. They file a supplemental petition and pray for an injunction, and ground their application on the fact that the attempt of defendants to act in the manner alleged in the 'original petition, and to sit as returning officers, will defeat the object of this suit and render nugatory the judgment therein prayed for.
A rule nisi was granted upon this supplemental petition, which after filing of affidavits and counter affidavits, was made absolute and the injunction granted by the Eighth District Court. An answer to the rule nisi was filed answeriug :
First — That the supplemental petition disclosed no cause of action of which this court has jurisdiction.
Second — That Wharton was duly appointed to discharge the duties of Secretary of State during the suspension of Herron.
Third — That Wharton, Hatch and Da Ponte were duly summoned to ■sit as returning officers for the election held the first Monday of November 1872, being the fourth day of said month, and qualified as such.
There are two j udgments of the lower court, one rendered November 19, 1872, notice of which issued the same day; the sheriff received it on the twentieth and served it on the twenty-second of November, on Hatch and Da Ponte, and on twenty-eighth on Wharton.
*24On November 21, defendants moved for a new trial on the grounds that the law is repealed under which the suit was instituted, and that the judgment is contrary to law and evidence. A new trial was-granted. On November 25, defendants filed an exception to the jurisdiction of the court.
Three different judges sat upon this case between its first institution and the dates of the appeals. Judge Dibble’s last act was November-19, the date of the rendition of the judgment appealed from.
Judge Elmore’s first act was the granting of the new trial. This order was made December 3, 1872, and on the same day Elmore, judge, dissolved the injunction and dismissed the suit on the grounds that the act No. 98, approved November 20, 1872, had taken the place of the old law and that no one had authority to count the votes or make returns of the election of 1872 until new appointments are made by proper authority.
All the proceedings up to this point had been in the Eighth District Court.
On December 17, the Superior Court was acting in the case. A motion on that day was made by A. P. Field, alleging that he was Attorney G-eneral, and that the judgment in the case rendered by the Eighth District Court “jeopardizes” the position of your petitioner in his office, whereby your petitioner has an interest over five hundred dollars, his salary being five thousand dollars per annum.
A devolutive appeal was granted the same day, December 17, by Lynch, then judge of the Fourth District Court, acting for Hawkins in the Superior Court. On January 2, 1873, another petition for appeal is made — the judgment is signed on the same day.
The appeal is again granted, another bond for the same amount, three hundred dollars, is given and the order is that this appeal be devolutive and suspensive.
After unweaving this “tangled web’’ of facts, the points of law necessary to determine the question of dismissal are few, simple, and well settled by the jurisprudence of this court, and these decisions are supported as sound law by adjudicated cases in most if not all of the-States, and of the Supreme Court of the United States.
I will consider first the question of jurisdiction, as determined by the amount involved, and whether Field’s interest, who is sole appellant, even were it decided that the amount as between the original parties to the suit was sufficient to give jurisdiction, amounts to five hundred dollars.
What is the allegation made in the petition of intervention by Field under which he offers proof by his affidavit of his interest? The language of his petition is that the judgment “jeopardizes” his position in his office.
*25The case of the “State ex rel. D. C. Byerly v. The judge of the Eighth District Court, 23 An. p. 768,” decided by this court without dissent November 1871 ; Taliaferro, J. is relied upon as sustaining this view.
In that case Byerly sought relief by appeal from a judgment rendered on a mandamus proceeding against John S. Walton, Administrator of Finance, in favor of the clerks of the Fourth and Eighth District Courts, ordering Walton to file all suits under his control, irrespective-of amounts involved, in said courts, alleging that his interest was over five hundred dollars, as it deprived him of much more than that, his-court having previously had jurisdiction to the exclusion of all other district courts, of all suits where the amount did not exceed one hundred dollars.
The court a qua refused him the right to appeal and this court reversed the judgment.
Judge Taliaferro, the organ of the court, said: “It is settled by several decisions of this court that a third party may appeal from a judgment if he allege and show a direct and pecuniary interest in a suit, and that that interest amounts to a sufficient sum to give jurisdiction to the appellate court. The relator in this case made oath in the court below that he has an interest in this case exceeding one thousand dollars resulting to him from fees of office accruing to him as clerk of the Third Di.-trict Court.”
What interest has Field to disturb the judgment appealed from? He could have none whatever, provided the members of the board, who were defendants, did their duty, which was to count the votes and make returns. A majority of votes for him counted by that board would secure his salary fully as well as by the other board.
What does the law presume with reference to its officers ? That they will do their duty. This presumption is as uniform as that innocence is presumed until guilt is proven.
I can not consent to give this court jurisdiction by a presumption that violates the first principles of all law.
Courts should not intervene on allegations of parties’ rights being in jeopardy, except in a few cases specially provided for and with great, caution.
In the case of the United States v. The brig Burdett, 9 Peters 682, the Supreme Court of the United States say—
“That frauds are frequently practiced under the revenue laws can. not be doubted; and that individuals who practice these frauds are exceedingly ingenious in resorting to subterfuges to avoid detection is-equally notorious. But such acts can not alter the established rules of evidence, which have been adopted as well with reference to the protection of the innocent as the punishment of the guilty.
*26“A review of the evidence in this case must create a suspicion of fraud.
“This is the rule (the presumption of innocence until there is proof of guilt) which governs a jury in all criminal prosecutions, and is no less proper for a court when exercising a maritime jurisdiction.”
Presumptions of fact arise from certain other known facts, and must "be of such a character as to exclude all other presumptions.
We have no facts before us on which to base such a presumption as would give the interven or any interest, pecuniary or otherwise, in this ■appeal.
The same principles must determine the question of the State’s interest, were the case properly before us on appeal at her instance.
In the case of the State ex rel. S. Belden, Attorney General v. Markey, Kaiser and al., 21 An. 743, decided in December, 1870, by this court, Chief Justice Ludeling, the organ of the court, said:
“The relators have moved to dismiss the appeal taken by the city of New Orleans on the following among other grouuds, to wit:
“ That the city is without interest, pecuniary or otherwise, in the suit. The law grants the right of appeal to any one though not a party to the suit, if he have an interest in the subject matter of the suit. C. P. p. 671. But he must allege and show that interest; and it must be direct, pecuniary interest; and cites 1 N. S. 308; 4 N. S. 342; 4 N. S. 622; 2 Rob. 391. The matter at issue is the right to office. Whether the relators or defendants are under the law entitled to hold the offices of alderman and assistant alderman.”
In the motion for an appeal it is alleged that the city of New Orleans is interested in this suit in a sum exceeding five hundred dollars.
“The nature of this interest is not stated. In the affidavit of the Mayor accompanying the motion for an appeal, it is alleged that the city of New Orleans has a large pecuniary interest at stake; that the revenues and property of the city are administered by the Common Council, and that both the property of the city of New Orleans and its revenues are valued for the present year at over several millions of dollars; by law placed under the control of the council and would be under the control of W. R. Fish and the other informers if said parties were permitted to exercise said duties and to occupy the seats of the aldermen and assistant aldermen in the Common Council of said city of New Orleans. Defendant further says that the city of New Orleans is a political corporation duly chartered by law; that said city is interested in this suit in’ a sum exceeding five hundred dollars, and that it is aggrieved by the interlocutory orders and the final judgment herein rendered.”
We have examined the record in vain to ascertain what the pecuniary interest of the city in this suit is.
*27How can any pecuniary interest be said to be involved in this suit, where there are neither salaries, fees nor perquisites attached to the offices of aldermen and assistant aldermen, which are the subject of this suit? But whether there can be any pecuniary value attached to said offices or not, it is clear the city has no direct pecuniary interest in the suit.
“It has been decided that in a suit for something which has an appreciable money value, the oath of the appellant may supply the omission of evidence as to the value of the thing in controversy.
“But we are not prepared to say that the mere affidavit of any one, that he is interested in a suit between other parties will authorize an .appeal by him.” 2 Rob. 291, 4 N. S. 342.
He also cites the case oí Samuel Johnson v. The city of New Orleans, decided by this court. There is no salary attached to the returning board, and affidavits are the proofs of interest.
I am unable to see what interest, pecuniary or otherwise, Field has in this case to enable this court to grant him the right of appeal. Certainly his interest can not exceed that of the city of New Orleans, who alleged and swore that millions oí her property were involved. The •appeal was denied her, and I know no law or decision which can sustain his claim to an appeal in this case. This case should be disregarded by this court with great caution. The report shows that it was carefully considered and the previous rulings of this court on the «ame subject closely scrutinized.
Among the cases cited are Young v. Cenas, 1 N. S. 308, in which Martin, J., held “ that a party not injured can not appeal,” “it forms no res judieatum against him.”
Williams v. Trepagnier, 4 N. S. 342, Martin; J., said: “Appellant can not set up complaints which parties did not.” 2 Rob. 391.
Henderson *. Cross, Garland, J., said: “ The interest must be apparent on the record and pecuniary.” In addition to this, that decision was not even referred to as in conflict with the case of Byerly v. Judges of Eighth District Court, 23 An. 768, before cited; this latter case contains no reference whatever to any authority.
It is a common and wise rule of this and all supreme courts to make special reference to cases overruled ; it is necessary to preserve the harmony of the authorities.
That the case of Byerly, 23 An. 768, does not overrule that of Markey, Kaiser et al. is clear from the language used by the court without dissent in 24 An. 115, No. 2 of volume —. State ex rel. Byerly v. Walton, Wyly, J., decided February, 1872. This is the same case on its merits as was passed upon in 23 An. 768, November, 1871: “ We think the judgment of the lower court erroneous. The relator discloses no interest to justify this litigation. Until he earns fees the city of New Orleans owes him nothing.”
*28It is contended that Field’s interest is established by the fact that the Warmoth board has acted and counted him out, and that the title to the office is thereby denied to him.
The fifty-fourth section of the old law creating the original board, approved March 16, 1870, provides that “ the returns thus made and promulgated shall be prima facie evidence in all courts of justice and before all civil offices until set aside after a contest according to law of the right of any person named therein to hold and exercise the office to which he shall by such return be declared elected.”
His rights under this act on the merits are clearly open to vindication through the proper process, and iie can have no direct pecuniary interest in this contest unless we presume what the laws forbids, that this board committed frauds; the proof of which could only be made on trial of the meiits and the frauds must be of such a character as to cause his defeat. Under any view» taken of the case we should not go beyond a remandment to the lower court for trial on its merits.
It is also urged that'the action of the board in making the count and returns is final. The statute itself forbids this conclusion, making them, as quoted above, only prima facie evidence. But suppose the statute itself to have made special provision that the returns should be final. Wo should be obliged to notice its conflict with article 73 of the constitution and declare it null and void.
That article piovides that: “The judicial power shall be vested in a Supreme Court, in district courts, in parish courts and in justices of the peace.” The Legislature can not then invest the Returning Board with judicial powers, and all judicial acts by said board are null and void. They have no more power to create such a tribunal to exercise judicial powers than to create another branch of the Legislative department in violation of article 15 of the constitution.
Appellant further contends that his right of appeal is allowed without regard to any moneyed interest, as the suit is by the State to enforce laws. The judgment is peculiar. The petition does not pray for a judgment in favor of the State. The judge of his own volition gives one in exact terms for the State. It is a safe rule to give only what is asked for in the petition. This compels me to examine the statutes to ascertain what laws, if any, this suit is to enforce. If the original law creating this board, act No. 100, approved March 16,1870, was in force, I am unable to perceive that its enforcement could be accomplished in this indirect proceeding.
But is not that law dead í I am clearly of the opinion that the act No. 98, approved November 20, 1872, has taken the place of all preexisting election laws. The only argument advanced against this view is that at the time of the signing of this act the lower house of the General Assembly had ceased to exist, the terms of its members having expired November 4, 1872.
*29It would seem a sufficient answer to this, to say that the legislative / department in this "State consists of the House of Representatives and the Senate, and that the terms of a number of Senators had not expired on the twentieth November. Upon any theory there must have been left a fractional vitality in the legislative department.
Aet 43 of the constitution of the State provided that all bills for raising revenue shall originate in the “ House of Representatives.” Is this a bill to raise revenue ? There can be no such pretense. How do we know that it did not originate in the Senate ? There is no evidence whatever in the record on the subject. If it did originate in the Senate, the Governor was able to send it back to the identical body in which it originated as required by the constitution, the terms of a large number of its members not having expired. Whenever the executive or legislative department has exercised a discretion granted in the constitution, the judicial department can not limit or control it by considerations outside of the constitution.
I fiud this doctrine no where more emphatically announced than in the decisions of the Supreme Court of Louisiana.
In 11 An. p. 308, State v. Hufty, the court say: “ The second branch of our inquiry is, are there any restraints or limitations laid down elsewhere in the constitution which rendered the exercise of the power of removal by this address null and void? We say elsewhere in the constitulion, because if the power is expressly granted, we disclaim the right to limit or control it by considerations outside of the constitution.”
‘■'We are not the makers but the expounders merely of the paramount law. We can not add one jot or tittle to its terms. We can not by glosses and interpretations subtract one particle from its substance. It would be rebellion in a judge to say that a plain and unqualified grant of power given by the constitution to a particular department was null, beca: se he thought it was against common right.”
The Governor’s power to sign this law was ‘‘ a plain unqualified grant of power given by the constitution ” to the executive department of the government and is beyond our reach, no matter how unwise his act may have been or how disastrous its consequences.
To trespass upon his constitutional rights is to imperil the whole frame of our government.
The doctxine advanced by appellants is novel and without sanction in American jurispru ence. Its execution is fraught with such dangers as were doubtless foreseen by the law makers, and they preferred to give a continuous life to that department and not to increase the changes that were inevitable among its members by acts of God beyond their control. It is equally well settled that the discretion given by law to the Executive is not subject to abridgment by the *30judiciary. Opinions of Attorney Generals, vol. 3, p. 471; vol. 1, 681;. vol. 3, 281; vol. 9, 313; vol. 12, —.
The judicial department can only interpose to correct illegalities-arising after the Executive’s discretion has been exhausted. This-doctrine is elementary in the history of our constitutional form of government. The preservation of the separate rights of each department has ever been regarded as fundamental in the government of all the States of the Union. The judicial department is notless interested in it for the maintenance of the rights of the legislative and executive departments than for its own self-preservation.
The last clause of this act, section 71 reads : “ That this act shall, take eflect from and after its passage and that all other laws on the subject of election laws be and are hereby repealed.”
This clause sweeps out of existence all other laws on the same subject matter; it contemplates no revision nor modification; is absolute,, unconditional, from its letter, designedly exceptional.
Its wisdom and the consequences to flow from it are not matters within our jurisdiction to determine.
When parties are depiived of constitutional rights by reason of its-provisions they will vindicate those rights through the regular-channels.
An emphatic indorsement of this view is contained in the case of the State of Louisiana ex rel. Board of School Directors v. the Mayor and Administrators (23 An.. 358) of New Orleans, Justice Howell delivering the judgment of this court without dissent:
“Although judges are not to be controlled in their action by a consideration of consequences, we are unable to see the disastrous consequences which seem to be apprehended by counsel from the operation of this law.”
It is also contended, that conceding the authority of the Governor to sign this act, it can not operate a removal of the Lynch board,, because article 122 of the State constitution provides that all officers “shall continue to discharge the duties of their offices until their successors shall have been inducted into office.”
How does this provision apply to this case 9
This question is definitely settled by the case of State ex rel. Joseph L. Montieu v. Ursin Lavigne, 23 An. p. 111, decided February, 1871, without dissent. Wyly, J., the organ of the court, says: “The-question is, was that part of the act creating the office of tax collector repealed by the act of twenty-first of October, 1868, “An Act to provide a revenue to support the State government and the manner of collecting the same.”
This act provides for the appointment of an assessor and defines his-duties; it also provides, section 44, that the assessor in each and every *31parish shall collect the State and parish taxes' of his parish; and by-section 78, “all laws or parts of laws contrary to the provisions of this act are repealed.”
A fair interpretation of the law leads us to the conclusion that the office created by the act of 1864, and claimed by the respondent is abolished by the sections of the revenue act of 1868 to which we have referred.
Of course the term for which this officer was to hold did not continue-• after the repeal of the law creating the office; for it would be absurd to say there is an unexpired term to an office that has ceased to-exist.
The repealiog clause of this act, approved March 16, 1870, acts 1870,. p. 152, No. 68, is in these words : “That all laws or parts of laws on the subject of raising revenue or the administration of the same contrary to or inconsistent with this act be and the same are hereby repealed.”
The repealing clause, section 71 of the act November 20, 1872, is in these words: “That this act shall take effect from and after its-passage and that all other laws on the subject of election laws be and are hereby repealed.”
This-repealing clause is exceptionally sweeping; that of the act of 1870 repealed only all laws contrary to or inconsistent with it, this repeals all other laws on the subject of elections; as before said, it is absolute, unconditional.
This court properly decided in 23 An. 111, cited above, that it would, be absurd “to say there is an unexpired term of an office which had ceased to exist.”’
Consequences can not be considered by judges.
In the case of Craig et al. v. The State of Missouri, 4 Peters 410,. Marshall, Chief Justice, the organ of the court said (p. 437): “ In the argument we have been reminded by one side of the dignity of a sovereign State; of the humiliation of her submitting herself to this-tribunal; of the dangers which may result from inflicting a wound on that dignity; by the other, of the still superior dignity of the people-of the United States, who have spoken their will in terms which we can not misunderstand.
“ To this admonition we can only answer, that if the exercise of that. jurisdiction which has beeh imposed upon us by the laws of the United States shall be calculated to bring- on those dangers which have been indicated, or if it shall be indispensable to the preservation of the Union and consequently of the independence and liberty of these States, these are considerations which address themselves to those departments, which may with perfect propriety be influenced by them.. This department can listen only to the mandates of law, and can tread_ *32only that path which is marked out by duty.” This was acause cel&b.re in the Supreme Court of the United States.
The doctrine announced by this court that the signing of a new act repealing an old is sanctioned by numberless authorities. The passage of statutes in the States and by Congress has repeatedly found courts acting under former laws, and struck them out of existence with cases half tried, aud annulled all proceedings at the date of the passage of the act not completed, and has turned the worst criminals loose. 9 Howard 571. Potter’s Dwarris on Statutes and Constitutions, pp. 158, 160.
In 5 Wallace, p. 541, Insurance Company v. Ritchie, Chase, Chief Justice, said: “It is clear that when the jurisdiction of a cause depends upon a statute the repeal of the statute takes away the jurisdiction. And it is equally clear that where a jurisdiction conferred by a statute is prohibited by a subsequent statute, the prohibition is so far a repeal of the statute conferring the jurisdiction.”
The well known case of ex parte McCardle, 7 Wallace, 506, decided in 1868, Chase, Chief Justice, the organ of the court, is perhaps stronger on this point than any preceding case. He says : “What then is the effect of the repealing act upon the case before us 1 We can not doubt as to this. Without jurisdiction the court can not proceed at all in any cause.”
As to tins, jurisdiction is the power to declare the law, and when it ceases to exist the only function remaining to the court is that of announcing the fact and dismissing the cause.
“ The general rule, supported by the best elementary writers, is that when an act ol the Legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed.” He cited Dwarris on statutes, 538; 13 How. 429; 5 Wall. 541. “It is quite clear, therefore, that the court can not proceed to pronounce judgment in this case, for it has no longer a jurisdiction of the appeal, and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the constitution and the laws confer. And this is not less upon authority than upon principle.”
If an act of Congress can destroy the power of the Supreme Court of the United States to complete the trial of a half completed case, I am unable to perceive why an act of the Legislature of Louisiana has not the power to prevent the completion by a returning board of its own creation, of any acts incomplete at the date of its passage.
But it is urged that act No. 98 of 1872 did not vacate the offices of the returning board created by act No. 00 of 1870, because the number of the board remains the same in the new as under the old law and their duties are the same, that the offices are identical. This is a serious mistake of fact.
*33Section 2 of act No. 98 takes the place of section 54 in the act of 1870. Its provisions are essentially different. The law of 1870 constituted the Governor, Lieutenant Governor, Secretary of State, T. C. Anderson and John Lynch the hoard. The law of 1872 provides that five persons, to be elected by the Senate from all political parties, shall be the returning officers for all elections in the State, a majority of whom shall constitute a quorum and have power to make returns of all elections. Under the law of 1872 the election was to be held at ■every meeting of the Senate ; under the old law Anderson and Lynch were permanent members and the other three were members as long as they remained Governor, Lieutenant Governor and Secretary of State.
The titles of the two acts differ materially. If the title of the act No. 98, 1872, were substituted for the title of the act No. 100, 1870, several provisions in the act of 1870 would be inoperative as conflicting with that provision of the constitution which requires the title of the act to express the object of its provisions. The two acts are radically different. An important and marked difference is in the provision requiring the board under the last act, that of 1872, to be ■composed of members af all different political parties.
It was specially inserted to prevent an abuse which at the date of the passage of the act was notorious in this State and throughout the whole country. The want of identity in the two laws is apparent on their face.
We are to consider the facts as they were at the institution of this suit in the lower court. Then the Warmoth board were acting as the Returning Board; they are the defendants in that suit, and if an appeal had been taken by the party cast after the decision of that suit by Judge Dibble they would have been appellants in this court. The last order in the Eighth District Court prior to the intervention, which resulted in this appeal, was one dismissing the Lynch board suit. The Returning Board that was inducted into office at the beginning of the suit continued in office until removed by the order of the United States Circuit Court. It is my opinion that the board thus inducted are not entitled to invoke this article of the constitution of Louisiana. It was inserted in the constitution to regulate changes in office caused by the changes in State laws aud appointments and removals by State authorities. To recognize the right of the United States government thus indirectly to settle the title to all offices in the Stale would unsettle the whole jurisprudence of the State and of the general government itself. Neither the letter nor spirit of the enforcement act justify such an interpretation. It is without precedent.
I am unable to see the disastrous consequences to flow from this new «lection law, and if I did see them, courts are powerless under the *34settled jurisprudence of this State and the whole country to avert-them. 9 An. 562; 8 An. 341.
Our duty is to interpret existing laws, not to remedy defective laws that is the province of the legislative branch of the government.
This view disposes of the point pressed in argument in this case as to consequences of dismissing this appeal.
There are other legal grounds set up for the dismissal of the appeal which it is unnecessary to notice.