dissenting: This suit for the office of judge of the Sixth Judicial District was brought at the domicile of the defendant in the parish of Tangipahoa. It was subsequently transferred to the Superior District Court, parish of Orleans, and there was rendered the judgment in favor of the plaintiff which a majority of this court affirms.
The first question is, had the Superior District Court jurisdiction of the case?
If the jurisprudence of this State is settled upon any point, it is that a defendant must be sued at his domicile, as provided by article 162, C. P., except in the cases expressly excepted from the operation of that article. It has been repeatedly decided that the law alone gives jurisdiction, and the parties can not by consent supply the want of jurisdiction.
*258In the ease of Watkins, 21 An. 258, there was a controversy for the office of judge of the Eleventh District Court, and the suit was brought before Judge Levisee, of the Tenth District Court. This court of its-own motion dismissed the suit, because it appeared that Watkins’ domicile was not in the Tenth District, parish of Caddo, but in the Eleventh District, parish of Claiborne; and this court held that because the judge of the Eleventh District Court was interested and could not try the case, it did not follow that the suit might be brought before the judge of tile Tenth District Court; that article 90 of the constitution “has directed how a case may be tried when the judge of the court is interested.”
This article directs that when the district judge is interested in the suit, he shall call upon the parish judge to try the case.
When, therefore, this suit was brought in the district court, parish of Tangipahoa, the district judge, who was interested, very properly entered an order recusing himself, and calling upon the parish judge to try the case. Thus far the proceeding was regular.
Subsequently, to wit: on the eighth March, 1873, the judge of the Superior District Court of the parish of Orleans granted an order requiring the transfer of the case to his court for trial, and in pursuance thereof Judge Bradley, the parish judge of the parish of Tangipahoa, who had been called by the plaint iff to try the case, ordered the transfer thereof, as required by the judge of the Superior District Court, 'i’lie sole ground upon which the transfer was ordered was an averment in the motion and affidavit presented to the Superior District Court, “that the said E. P. Ellis, illegally assuming to be judge of the said judicial district, issued a writ, of injunction, at the suit of one John W. Addison, against the aforesaid Bradley, parish judge, injoining and restraining him from hearing and determining said suit or proceeding instituted by this appearer against the said Ellis, as aforesaid, and that by reason of said injunction said Bradley, parish judge, is unable to act.”
The law upon which the judge of the Superior District Court based his order is section three of act No. 39 of the acts of 1873.
That statute, however, only authorizes the judge of the Superior District Court to order the removal of a cause from the district wherein the parties contesting shall reside, upon the application and “affidavit of the recusation or inability of the judge to act from any legal cause.” * * * * Now the question is, was the parish judge of the parish of Tangipahoa unable to act by reason of the injunction referred to in the motion for removal of the cause 9 Was it in the power of Judge Ellis, the defendant in this suit, to issue an injunction or grant any order preventing the parish judge from trying this case? I think not. If Judge Bradley was the lawful parish judge, as the majority of this *259court decides, lie had the right to hear and determine the controversy between the plaintiff and defendant for the office of district judge; and no order issued by either of the contestants could destroy the jurisdiction conferred on him by Article 90 of the Constitution. If Judge Bradley was not the lawful parish judge, Judge Addison was, and there was no injunction nor any pretext whatever to defeat his jurisdiction of the case. If it was not in the power of Kemp and Ellis by consent to give the Superior District Court jurisdiction of their case, as was expressly decided in the case of Watkins, how could they, or either of them, grant an order divesting the parish judge of the parish of Tangipahoa of the jurisdiction, expressly conferred by Article 90 of the Constitution. If the case of Watkins and the other decisions of this court on the same subject mean anything, they mean that the jurisdiction of the judge- at the proper forum can not be defeated by any act or contract of the parties. At the time this case was transferred to the Superior District Court the parish judge of the parish of Tangipahoa alone had jurisdiction, and there was no legal cause rendering him unable to act. If Judge Bradley had jurisdiction to order the transfer of the cause to the Superior District Court, it was because he was the acting parish judge; he swears he was the acting parish judge, and if so why had he not jurisdiction to try the case, there being no recusation on his part nor any pretext for a cause of recusation.
In my opinion, a sound construction and indeed the obvious meaning of section 3 of act No. 39 of the acts of 1873 is, that the inability of the judge to act, rendering a removal of the cause necessary, is an actual inability, arising from “a legal cause,” and nob a sham or apparent inability arising, as in the case before us, from an absurd order issued by one of the litigants in the suit pending before the parish judge. There is no pretense that the plaintiff could not get justice before the parish judge of his own district, and this is not made a ground for the order of removal, even if it were a valid one, about which it is unnecessary for me to express an opinion.
The only law upon which the judge of the Superior District Court did or could base his order for removal is section three of the act No. 39 of the acts of 1873, which, in my opinion, as before stated, did not authorize his order, because there was no affidavit of the inability of the parish judge to act arising from a legal cause.. But if there were doubts of this, there is no doubt in my mind that section three of said act is utterly void, because the provision thereof is not covered by the title of the act, as required by article 114 of the constitution. The title of act No. 39 of the acts of 1873 is “ an act to amend and re-enact an act entitled ‘an act to regulate contestations for judicial offices.’ ”
Section three provides for a change of venue or for the removal of *260causes from one district to an adjoining district, or to the Superior District Court of the parish of Orleans in certain cases, and the object of this section is not mentioned in the title. It is repugnant to article 114 of the constitution and therefore void.
Section one of said act, providing what shall be prima facie evidence of title to a judicial office, is also void, because the object thereof is not set forth in the title as required by said article of the constitution.
Believing that the Superior District Court had no jurisdiction of the case, and that the judgment of a court without jurisdiction is an absolute nullity, I deem it unnecessary to enter upon an elaborate discussion of the merits of the controversy. I will state, however, some of the views which I entertain on the subject.
I do not consider that the question whether the Lynch Returning Board or the Wharton Returning Board was the legal returning board, has ever been decided on its merits by any court of this State, at least so far as it concerns the parties to that controversy, and so far as the question incidentally affects the parties to this suit. The ease between these returning boards was decided in the Eighth District Court in favor of the Lynch Returning Board, but that court granted a new trial, and subsequently dismissed the suit without considering the merits, on the ground that the law under which said board or boards were organized was repealed by the approval by the Governor of the new election law. Neither of the parties to that suit appealed from that judgment, even if it be conceded that the case had finally been decided on its merits. Therefore, as between the contestants in that case, there was no judgment in favor of the Lynch Returning Board. It was A. P. Field, a third party, who alone appealed from that judgment, and as to him alone the judgment was reversed by the decision of the majority, of this court. Both of the contestants being appellees in that appeal, of course there could be no reversal or change of judgment as to them.
Therefore, as to the returning boards, and as to all other parties, except A. P. Field, it has never been decided by any court in this State that the Lynch returning board was the lawful returning board. Indeed, the question has never been presented in a form that it could be considered, except at the first trial in the Eighth District Court, and the judgment rendered at that trial was set aside, as before said, by the judge of that court.
•Plaintiff holds a commission from Governor Kellogg, issued on twenty-fourth January, 1873; and the defendant holds one issued by Governor Warmoth on fourth day of December, 1872.
There is no proof in the record that the returns of the November election had been canvassed by a legal returning hoard before either of these commissions issued. I think the majority of this court errs *261in taking judicial notice that the election returns had been legally-canvassed when Governor Kellogg commissioned the plaintiff, and they had not been legally canvassed when Governor Warmoth commissioned the defendant.
In the absence of proof to the contrary, I think this court is bound to presume that Governor Warmoth did his duty, and that the truth is, as recited in his commission to Judge Ellis, of the fourth December, 1872, that “at a general election held on the fourth day of November, 1872, in conformity with law, E. P. Ellis was declared duly elected district judge in and for the Sixth Judicial District,” * * * Hero is a recital in a commission issued by the Governor in the name and by the authority of the State of Louisiana, attested with the great seal of the State, and it stands uncontradicted by any proof in the record.
But it may be urged that the same recital is in the commission ^issued to Judge Kemp on the twenty-fourth of January, 1873. To this a sufficient reply is, that the first commission issued to an officer whose term of office, fixed in the Constitution, has not expired, is at least prima fade the best title to the office. It devolves upon the party presenting the second or a later commission to show affirmatively the invalidity of the title acquired under the first.
In this ease the plaintiff has not introduced a particle of proof to invalidate the title of Judge Ellis to the office. He simply presents his commission and asks the court to presume that he is right and that his adversary is wrong; that the commission of Governor Kellogg is a prima fade title to the office, but that the prior commission issued by Governor Warmoth is not a prima fade title to the office. He has not proved that the returns had not been legally canvassed when the commission issued to Judge Ellis, nor has he proved that they had been legally canvassed when the commission issued to him. He shows no infirmity in the title of his adversary, but merely sets up a title of the same character and of a later date.
In my opinion the commission issued to Judge Ellis on the fourth day of December, 1872, was a prima fade title to the office -, it was a title that authorized him to administer the office, at least until a better one was adduced; and that it devolved upon the plaintiff attacking this title to prove affirmatively the facts necessary to defeat the same.
Judge Ellis was the district judge at the time of the election, and was entitled, under Article 122 of the Constitution, to continue to discharge the duties of the office, if neither his adversary nor himself showed a valid title under the election of 1872.
There are several important bills of exceptions in the record taken by the defendant which the court has been urged to consider.
The defendant offered several witnesses to prove that the returns of *262the election in the Sixth Judicial District were never in possession of the Lyncli Returning Board. Also he offered the witness James Longstreet, who was a member of that board, to prove that they “ did not canvass the legal returns of the election made by the supervisors of registration and election in the parishes of Washington, Livingston, St. Tammany, St. Helena and Tangipahoa, and to show that said returns of election from said parishes were never before or in possession of said board, and to prove that no legal quorum of said board was present or acted upon the returns of said election in and for said Sixth Judicial District, and that if any returns were made by them of said election in said Sixth District, and any declaration of the election of the plaintiff, that said returns and declaration were based upon exporte affidavits, rumors and hearsay, and not upon any official returns.” * * *
I think this testimony under the pleadings was admissible and the bills of exceptions were well taken.
It was certainly competent lor the defendant to prove that the election returns of the Sixth Judicial District had never been canvassed by the Lynch Returning Board, and that said returns were never in their possession, as an offset to the pretensions of the plaintiff that he had been returned as elected by said board. This proof in no manner contradicted the official report of said board, because the same, if made, was not introduced in evidence.
The position of the plaintiff in this case is most extraordinary. He asks the court to presume that the legal returning board had not acted when Governor Warmoth commissioned the defendant, and that they had acted, and favorably to him, when Governor Kellogg commissioned him. He asks the court to presume that Governor Warmoth acted in bad faith and that Governor Kellogg acted in good faith in reference to the issuance of these commissions. He proposes to go behind the commission issued by Governor Warmoth to inquire whether it was based upon the report of the returning board, but he resists the proof of the defendant that his own commission was not based on the returns of the i eturning board.
Placing the merits of his case upon the presumed favorable report of the Lynch Returning Board, he offers no proof of their canvass and favorable report in his behalf, but resists, and succeeds in getting the court to exclude the testimony offered by the defendant to prove that no returns had been made from the parishes composing the Sixth Judicial District, and there was no canvass thereof by the Lynch Returning Board. He asks the court to take judicial notice that the Lynch Returning Board was the legal returning board; that they had received and canvassed the returns from the Sixth Judicial Distrct, that they had reported in his favor and against the defendant, and that Governor Kellogg’s commission to Mm was based upon this favorable report of *263tlie Lynch Returning Board. Besides all this he demands the exclusion of all the testimony offered by the defendant to ‘disprove the presumptions which he claims in his favor, and to disprove the facts of which he contends this court must take j udicial cognizance. In these extraordinary pretensions he was maintained by the judge of the Superior District Court and by tlie majority of this court.
With all due respect for the views of my learned associates, I feel constrained to differ with them in the conclusion to which they have arrived, and'for the reasons stated I dissent in this case.
Rehearing refused.