dissenting. This is a contest for the office of Associate Justice of the Supreme Court. The proceeding is under act approved fifteenth of January, 1873, entitled “an act to regulate proceedings in contestations between persons claiming a judicial office.” This act provides that if the incumbent shall refuse to vacate the office, the ■“ person so commissioned shall have the right to proceed by rule. ■» * * Such rule shall betaken contradictorily with such incumbent, and shall be made returnable within twenty-four hours, and shall be tried immediately, without jury, and by preference over all other matters or causes depending in such court, and the judgment therein shall be signed the same day of rendition. That either party to such rule may take an appeal from the judgment thereon, but such appeal shall be applied for within one legal day from the rendition of the judgment .on such rule, and shall be made returnable to the Supreme Court within two days. The appeal shall be taken up in the Supreme Court by preference over all other cases, immediately on the application of either party, and the judgment thereon shall become final after the expiration of one legal day, whether judicial or not.”
This law was approved on the fifteenth day of January, 1873, and on the next day the plaintiff filed the following motion or rule which I copy verbatim:
“ On motion of A. P. Field, Attorney General of the State of Louisiana, herein appearing upon the relation of Philip Hickey Morgan, a resident of the parish of Orleans, and upon suggesting and giving the court to understand and be informed, as follows to wit:
That said P. H. Morgan was nominated by the acting Governor of the State to the Senate thereof, to fill the vacancy of Associate Justice of the Supreme Court of Louisiana; that his said nomination was confirmed; that he was commissioned thereto on the fourth of January, 1873; that he has taken and subscribed the oath required by law; that he is entitled and empowered to execute and fill the duties of said office according to law, and to have and to hold said office, with all the powers, privileges and emoluments thereof;
And on further suggesting that John H. Kennard, also a resident of said parish, unlawfully holds said office and executes the duties thereof, and claims the right to the said office, and to the powers, privileges •and emoluments thereof;
It is ordered that said John H. Kennard show cause on Saturday, January 18, 1873, at 11 o’clock, A. M., why it should not forthwith be -decreed and adjudged that he is unlawfully holding and exercising the ■duties of said office of Associate Justice of the Supreme Court of the ■State of Louisiana, and the said P. H. Morgan be decreed and adjudged entitled thereto.”
On the eighteenth of January, 1873, the defendant filed the following *248exception, to wit: “And now comes John H. Kennard and excepts-that there has been no citation issued herein, or served on him in this-case, and prays to be hence dismissed with costs.”
On the same day the following exception and answer was also filed;, to wit:
“Now comes John H. Kennard. defendant in this suit, and excepts-to the rule herein taken by A. P. Field, attorney general, on the relation of P. I-I. Morgan, on the ground that said proceeding by rule in, manner and form as set forth in said rule is not authorized by law, and further that the act of the fifteenth of January, 1873, entitled ‘an act: to regulate proceedings in contestations between persons claiming a judicial office,’ as to its first section is unconstitutional and void, not. being in conformity to the title of said act.
And, further, that said act is prospective and does not apply to-pending litigation.
And, further, that said act in relation to sections two and three is unconstitutional, as it authorizes proceedings which amount to a denial! of justice.
And, further, that if said act is to be construed as applicable to suits, instituted prior to its passage, it is retroactive and void as violative of' Article 110 of the Constitution.
In case these exceptions be overruled- and not otherwise, for answer-to said rule this respondent avers that he was duly appointed by the Governor of the State to the office of Associate Justice of the Supreme Court of the State of Louisiana on the third day of December, 1872, vice W. W. Howe, resigned, during the recess of the Senate, and that, on the same day he was duly qualified and took possession of said' office, having complied with all legal requirements, and his term of.' office has not yet expired.”
On the same day, Saturday, January 18, 1873, these exceptions were-overruled by the court and the case was continued for trial till Monday, the.twentieth of January, 1873, on which day the defendant filed, the following supplemental answer, to wit:
“Now comes J. H. Kennard and for further answer, prays for a trial by jury, and pleads that the said act of the Legislature under which the relator, P. H. Morgan, claims to proceed, is null and void as violative of section one, article fourteen of the constitution of the United. States, which forbids any State from making any law which shall. abridge the privileges or immunities of its citizens, and prohibits any State from depriving any person of life, liberty or property, without • due process of law, or to deny to any person, within its jurisdiction,,, the legal protection of its laws; and if said act is void this court has - no jurisdiction to proceed by rule in the manner and form as set forth, in said rule.”
*249On the same day the prayer for trial by jury was refused, the case was tried and judgment entered up for the plaintiff. The defendant immediately took this appeal.
I have copied all the pleadings and noted the orders of court, because I differ with the majority of the court as to an issue upon which they pass, which issue I maintain is not raised in the pleadings; therefore all that the majority of the court say in reference to that point, to wit: the legality of the Pinchbaek government, is in my judgment a mere obiter dictum, and utterly without judicial effect.. The evidence upon which the observation of the court on this point is based was excepted to by the defendant on the ground of irrelevancy. It being offered to prove an issue not raised by the pleadings, I think the exception was well taken and the evidence should not have been received. Having copied the pleadings I now copy the bill of exceptions, in order that it may appear whether the evidence excepted to was pertinent to the issues made up by the plaintiff and the defendant. It is as follows :
“ Be it remembered that on the trial of this cause the defendant filed a prayer for a jury, as by the said prayer in the record will more fully appear; but the court overruled the said application, and refused to-permit the defendant to have said jury, to which ruling the defendant then and there excepted, on the ground that he was thereto entitled by the constitution of the United States.
And be it further remembered that in the trial of this cause the plaintiff offered in evidence the following documents.
First — “ Extract of the minutes of the extra session of the Senate of the State of Louisiana, held January 4, 1873,’’ and hereto annexed:
Second — “List of the Senators of Louisiana, certified by P. G. Deslonde, Secretary of State,” and annexed hereto.
Third — “ An official notice in the New Orleans Republican of December 9, 1872, on the fifth page thereof, being compiled returns signed by John Lynch and others, returning officers, declaring certain persons elected Senators of the State of Louisiana,” and hereto annexed.
Fourth — “ The record in the case of the State ex rel. Attorney General vs. Jack Wharton and others, No. 18 of the Superior District Court.”
And to the introduction of each and every one of said documents the defendant objected, on the ground that the same, and each of the same, were irrelevant thereto; but the court in each instance overruled the objection, and admitted said documents, severally, in evidence; and to said rulings, and each of them, the defendant then and there duly excepted, and reserves this his bill. '
The prayer for jury was asked only on the twentieth instant, and *250after the case had been begun on the eighteenth and continued, and ■the court on this account and because the law was not deemed unconstitutional, denied the prayer.
Now what are the issues'? It is alleged in the rule that on the fourth January, 1873, P. H. Morgan was duly appointed by the Acting' Governor and confirmed by the Senate; that he has taken the with of office, and is entitled to the possession of the office of Associate Justice; that J. H. Kennard unlawfully holds said office, and claims the right to exercise it, and also the privileges and emoluments thereof. Upon these averments it is asked that Kennard be decreed to be unlawfully holding said office, and that Morgan be adjudged entitled thereto.
To this the defendant has not pleaded the general denial. He simply •excepts to the form of the proceedings; pleads the unconstitutionality of the act of fifteenth January, 1873, and alleges that on the third day of December, 1872, he w|is appointed to said office by the Governor, during the recess of the Senate; that he qualified and took possession thereof, and that “his term of office had not yet expired.”
Under these simple issues what relevancy can be found for the introduction of a document containing a list of the Senators certified by Deslonde, Secretary of State; an extract from the New Orleans Republican showing the compiled returns signed by John Lynch and others, declaring certain persons elected Senators of the State; and the record of the case of the State ex rel. Attorney General v. Jack Wharton and others 1
Why should this case be encumbered with such documents, which 'have no more relevancy to the issues presented by the parties than they have to any other law suit pending in any of the district courts of the parish of Orleans ?
Indeed if these documents are pertinent to the issues of this case, then we had as well abolish the rule that proof may be refused for ■irrelevancy, that the plaintiff can not prove what he has not alleged.
• The list of the Senators, the returns of John Lynch and others, and the case of Jack Wharton, have no more to do with the allegations of •the plaintiff and tlie defendant in this suit, than the list of the jurors of the First District Court, the returns of the Presidential electors and any transcript that may be found in the clerk’s office of the Supreme Court would have to do with it.
The defendant does not plead that the statute of the fifteenth of January, 1873, is void, for want of authority in its authors to act as members of the General Assembly; nor does he aver that the commission issued to P. H. Morgan is invalid because Pinchback had no authority to act as Governor ; no such issues have been made by «the pleadings.
*251The questions are, is the act of fifteenth January, 1873, providing a remedy so summary, constitutional, and is the term of office of J. H. Kennard expired ■?
Believing that these aie the issues presented in this case, I feel constrained -.press my opinion that the observations of the majority of the court in regard to the late Acting Governor of the State, the organization of the General Assembly, and the legality of the late extra session thereof, are remarks not necessary to the decision of this case, and are merely opinions outside -of the issues involved in this controversy, and therefore not obligatory.
I find that the first section of the act of the fifteenth of January, 1873, declaring that the commission is prima fade proof of the right of the holder to the immediate possession of the office, is not covered by the title: “An act to regulate proceedings between persons claiming a judicial office,” and for that reason it is repugnant to article 114 of the constitution and void.
I find from the record that there was no citation, service of citation, or anything equivalent thereto; and that the defendant was not served -even with a copy of the rule upon which this action is based. His exception on this ground was undoubtedly well taken.
Citation, or some notice equivalent thereto, is the foundation of the action ; and a proceeding without it is utterly void, unless the defendant waives it and voluntarily enters an appearance. O. P. 206.
The act of fifteenth January, 1873, authorizing the proceeding by rule, 'does not dispense with the law requiring citation or notice. On the contrary, it declares that “ such rule shall be taken contradictorily with such incumbent, and shall be made returnable within twenty-four hour hours, and shall be tried immediately without jury,” etc. T understand from this statute that citation or notice of the rule shall be served, and that it shall be returnable within twenty-four hours from the time of service. This seems to be a fair interpretation of the statute, because it must be construed with reference to article 206, C. P., and other laws requiring notice of judicial proceedings.
If the law, however, requires the rule to be returnable within twenty-four hours from the time it is filed, and the trial to begin immediately, I think it contravenes the constitution of this State and •the constitution of the United States, because a proceeding under it would practically deny the defendant of some legal right without due process of law. Due process of law implies a fair hearing before .judgment. Cooley’s Constitutional Limitations, page 353 et seq., and ^authorities there cited.
To be a fair hearing, there must be legal notice of the demand, and a reasonable delay allowed for preparing the defense.
In my opinion, the statute under which this rule is taken does not *252allow such delay. It authorizes a proceeding by which the defendant in this case is deprived of his legal right to the office of Associate-Justice of the Supreme Court without due process of law.
The defendant is deprived of a legal right without citation or legal notice of the proceeding, and without reasonable delay to prepare and make his defense.
The statute as applied to this case, in my judgment, contravenes, the constitution of this State and the constitution of the United States, and it is therefore void. On this ground I think the demand of the plaintiff should be dismissed.
On tlie merits I find that the defendant was duly commissioned as-Associate Justice of the Supreme Court on the third of December, 1872, during the recess of the Senate; that he took the required oath of office and entered regularly on the duties thereof. He was appointed under Article 61 of the Constitution, which declares that “ the Governor shall have power to fill vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of the next session thereof.” * * * * Article 17 declares that “ the General Assembly shall meet annually on the first Monday of January.” * * * * Article 64 provides that the Governor “ may on extraordinary occasions convene the General Assembly.”' * * * * Now in order to ascertain whether the term for which the defendant was appointed has expired, it is necessary to determine the exact meaning of that part of Article 61 which says his term “shall expire at the end of the next session” of the General Assembly. Does it mean at the end of the next regular session or the end of the next extra session? Was that clause used in reference to Article 17 fixing-the beginning of the regular sessions on the first Monday of January annually; or was it used in reference to Article 64, giving the Governor th.e right, on extraordinary occasions, to convene the General Assembly ? I believe the clause was used with reference to the regular sessions provided for in the Constitution, and not in reference to such extra sessions as extraordinary occasions might demand; that Article 61 refers to the normal state of things and not to the extraordinary or abnormal. As the regular session, beginning on the first Monday of January, 1873, has not yet expired, I believe the term for which Judge Kennard was appointed, under Article 61 of the Constitution, has not expired, and, therefore, the action of the plaintiff is premature, and his demand should be rejected.
For thé reasons stated I feel constrained to dissent in this case.
Writ of error to the Supreme Court of the United States, granted by Judge Bradley, and filed Feb. 5, 1873.