concurring. In addition to the reasons given by the Chief Justice in this case, in which I concur, I desire to say that the right or title of either party to the office in controversy is fixed and governed by the Constitution of this State, and is in no manner dependent on, or affected by, the act approved fifteenth of January, 1873, which simply relates to the form of proceeding in certain cases, and if it should be unconstitutional in any or all of its provisions, we would still, I think, under our Constitution and laws, have the power to say who is prima facie entitled, without a judicial investigation by an inferior tribunal, to a seat with us on the Supreme Bench.
The Constitution of the State provides that the Supreme Court shall be composed of one Chief Justice and four Associate Justices, a majority of whom shall constitute a quorum; they (the five) shall be appointed by the Governor, with the advice and consent of the Senate, for the term of eight years (article 75); when a vacancy happens during the recess of the Senate the Governor has the power to fill it by granting- a commission, which shall expire at the end of the next session of the Senate (article 61); all commissions shall be in the name and by the authority of the State of Louisiana, and shall be *246sealed with the State seal, signed by the Governor, and countersigned by the Secretary of State (article 72).
Under these provisions the right of the plaintiff, P. H. Morgan, to a seat as Associate Justice of the Supreme Court, by virtue of a commission, showing his appointment by the Governor, with the advice and consent of the Senate, vice W. W. Howe, resigned, when he presented it (with an oath of office) after the expiration of the extra session of the Legislature convened on the ninth of December, 1872, was clear. The defendant’s commission was issued under article sixty-one of the constitution, and by that article could have vigor, at the best, only until the expiration of the above mentioned session, which occurred before the plaintiff claimed his seat, and we could rightfully have admitted him, or rather could not rightfully have prevented him, had he insisted on taking his seat. His right prima facie at least was equal to that of either one of us. We are bound to know who compose the Supreme Bench, and we knew the rights of these parties before this suit as well as we do now.
But as each member of the Supreme Court must be appointed by the Governor, with the advice and consent of the Senate, for the constitutional term, it follows, in my opinion, that a commission in due form, showing that an appointment to fill an unexpired part of such term has been made, with the advice and consent of the Senate, is, at least, prima facie evidence of the right to the immediate possession of such office, whether the session of the Senate had expired or nos at which such appointment had been confirmed. The appointment by the Governor without the aid of the Senate is in its nature and essence provisional only, and is necessarily and immediately superseded by a subsequent appointment made with such aid, it being the mode of appointment specially provided by the constitution for the Supreme Court.
In my opinion the defendant has, by his pleadings, clearly admitted the legality and validity of the authority under which the plaintiff, Morgan, claims the office of Associate Justice. He does not directly assail the commission issued to the plaintiff, the official capacity of those who signed it or the legality of the Senate which confirmed the appointment, or of the Legislature which enacted the law under which these proceedings were instituted. Yet as his exceptions and answer might possibly be construed in reference to plaintiff’s allegations, so as to raise the question, I think it not inappropriate for this court to express an authoritative opinion thereon in this case. It is confirmatory of the pleadings and facts of the case.
No question is raised as to notice of the rule, service of which was made on defendant, else he would not have been in court.
I really can not see any reasonable ground of defense.