On Motion to Dismiss.
The opinion of the court was delivered by
Watkins, J.Condensed, the several grounds assigned for the dismissal of the plaintiffs’ appeal are:
1. That, this suit involving a right of occupancy and enjoyment of a public office, the appeal should have been made returnable to this court within ten days from the date of the judgment appealed from, whereas the order of the court a qua made it returnable on the first Monday of November, 1890, long after the expiration of that delay.
2. That this court is without jurisdiction of this cause rations materise because there is not involved therein an amount or matter in dispute in excess of $2000.
8. The alleged removal of relators having been effected under the authority of Section 4 of Act 68 of 1888, duly authorizing such a removal for specified offences and without subjecting the respondent’s act in such case to judicial control, courts are without authority in the premises; and therefore this court is without jurisdiction to render any judgment in this cause.
I.
Section 7 of Act 45 of 1870, Extra Session, is invoked as the law controlling appeals to this court, in cases like the present one.
That act regulates, amongst other things, appeals to this court. The section relied upon by counsel for the respondent is couched in these words, viz:
“That in all eases in which the right to office is involved, and an appeal is taken from the judgment of the lower court, it shall be returnable in ten days after judgment of the lower court,” etc. (Italics are ours.)
*96The question then is, whether there is, in this suit, a “right to office” involved; for, if there is not, the appeal was properly made returnable here, under Section 1 of that act.
A right to office can be said to be involved in a suit, only when there is a contest in respect to the title to an office. The law has made special provision for such contestations, in the intrusion into office statutes, which have been, from time to time, enacted.
One was enacted in 1868, which declared that an action may be brought by the Attorney General, or a district attorney, in the name of the State, against any person “who shall usurp, intrude into, or unlawfully hold, or exercise, any public office or franchise within this State," etc. Sec. 1, Act 58 of 1868.
It further provides, that whenever the defendant in such suit shall be adjudged “guilty of usurping, or intruding into, or unlawfully holding any office, franchise, or privilege, judgment shall be rendered, that such defendant be excluded from such office, franchise, or privilege,” etc. (Our italics.) Ibid. Section 10.
Sections 1 and 10 of Act 156 of 1868 are the same as those of the cited sections of Act 58.
These intrusion-into-office statutes furnish an only and exclusive mode of removing an intruder from “ any public office or franchise in this State; ” and it is in this mode alone that a disputed title to a “public office or franchise” can be tested; and it necessarily follows that only in such a suit can a “ right to office be involved.
An intrusion-into-office suit must be brought against the person intruding into the contested office. This is essential.
The ease before us is not such a suit, as the petition contains no averment that any one has unlawfully intruded into, or has attempted to intrude into, the offices to which relators respectively allege themselves to be entitled. It is strictly and technically a mandamus proceeding, taken, on the part of the relators, against the respondent in his official capacity as Mayor of the Oity of New Orleans, in which the relators allege themselves to be police commissioners, duly appointed by competent authority, and to have ■been unlawfully interfered with in the exercise and performance of the duties and functions thereof by the respondent; and demand the revocation of his' order in the premises, and the restoration of the status quo.
*97The prayer of the petition is as follows, viz:
“ Wherefore, relators pray that a writ of mandamus issue directed to Joseph A. Shakspeare, Mayor of the City of New Orleans, ordering and commanding him to rescind the order made by him of the 7th of July, 1890, purporting to remove your relators and restore them to their respective offices and functions, or to show cause to the contrary.”
We think it is manifest that this is not a suit “in which the right to office is involved,” in the sense of the law of 1870, and that the appeal of relators was properly made returnable here on the first Monday of November, 1890, as it was.
II.
Has this court jurisdiction rations materise? As we have just ascertained that this is not a suit in which a right to office is involved, it does not appear to be a jurisdictional question whether or not there is any pay, compensation or salary attached to the offices of police commissioner. But as we have shown in the preceding paragraph, the gravamen of relator’s complaint is the nullity of respondent’s order of removal and the consequences thereof.
The averments of the relator’s petition are substantially to the effect that, as, under the statutein question, the police hoard it composed of six commissioners, four of whom are necessary to constitute a quorum for the transaction of any business; that all vacancies occasioned in the board_ by “ death, resignation or removal * * * shall be filled by said board for the unexpir.ed terms of said commissioners;” that by the respondent’s act, if it should not be revoked, in the attempted removal of four of the six commissioners, the autonomy of the board would be destroyed, and it rendered incapable as such of filling the vacancies caused by their removal; and that the law creating the board would be, in effect, paralyzed by the respondent’s act. Hence, the relators, composing a majority of the commissioners, have a right and an interest in maintaining the law in its integrity, and in keeping it in force and in putting its important machinery in motion.
Their petition, then, specifically charges that “ by his aforesaid arbitrary conduct the said Mayor has effectually paralyzed for nearly three years the execution and the operation of said act by the Legislature, and will successfully suspend for that length of time the effect *98of and all obedience to the decision of the honorable the Supreme Court of Louisiana, rendered in the case entitled ‘The State ex rel. Nicholls, Governor, et al., vs. Joseph A. Shakspeare, Mayor, et al.,’ reported in 41st of Annuals at p. 156.”
The whole question may be summarized thus: That the action of the respondent has by the removal of four members of the board at one time left it without a quorum; that the vacancies can not be -filled “ by said board” for the unexpired terms of the removed commissioners, and the whole machinery of the police department will be for the full period of three years left at a standstill.
From this condition of things it is alleged that serious consequences will flow to the city and to the public service. For instance, that •during the interregnum thus created in the administration of the police department “no city or other officer will have a legal right to receive and disburse the sum of §180,000 appropriated for the police department by the City Council for the current year; and that the appropriations to be made for the same purpose for the years 1891 and 1892 may not be less than $150,000 for each of said years,” etc.
The object of this suit is to have the acts of the Mayor in thus attempting to paralyze the Police Board and thwart the execution of the police statute declared illegal, and the relators restored to the full exercise of their franchises, one of which is the receipt and disbursement of the existing appropriation of $185,000 in behalf of the police department, and which can not be legally received or disbursed by any other officer or authority in the meanwhile.
At this juncture we can not say — are not called upon to decide— whether the actual condition of things is as it is alleged to be, but whether the alleged condition of things confers jurisdictipn on this court to so decide.
These' averments are substantiated in law, for Section 2 of the statute under consideration provides “that said commissioners shall be elected by the Oommon Oouncil of the city of New Orleans, two for the term of four years, two for the term of eight years, and two for the term of twelve years.” It further provides that, “ in ease of death, resignation or removal from office of any of said commissioners, the vacancy shall be filled by said board for the unexpired term of said commissioner; and upon the expiration of the terms oí such commissioners, the offices shall be filled- by election by said Common Council for a term of twelve years, as above stated.”
*99Section 3 provides that “not less than four commissioners shall constitute a quorum.” It thus appears that a vacancy occasioned by the removal of a commissioner from office “ shall be filled by said board,” but when a vacancy occurs by reason of the expiration of a-commissioner’s term of office, it “ shall be filled by election by the Common Council.”
There was manifestly ample warrant in the statute for the averments that were made, viz: That Oy the action of respondent in removing four commissioners at one time the board was left without a quorum; that without a quorum the board could take no action in respect to filling the vacancies occasioned by relators’ removal; and that the Common Council was without power to fill said vacancies.
It being averred, as a matter of fact, that there had been already made by the Common Council an appropriation of §185,000 for the police department, the absence of a quorum of the board precluded its receipt or disbursement. On this hypothesis the alleged interregnum was complete, and the affairs of the police board were effectually brought to a standstill. It is obvious that relators have, as a majority of said board, and representing a quorum of its members, an actual, present interest in putting the machinery of the law in motion, to the end that the large appropriation already made may be received and disbursed to the police force of the city.
In State ex rel. Nicholls, Governor, vs. Shakspeare, Mayor, 41 An. 156, the jurisdiction of this court was upheld and maintained, on the ground that the enforcement of the law contemplated an ultimate appropriation of §150,000 per annum for the alimony of the police force, although there was then no board in esse, and no fund for disbursement in existence. For a very much stronger reason should the jurisdiction of this court be maintained in the instant case on the averment that the Mayor’s illegal acts threaten to emasculate the existing board of all authority to act, and thus annihilate it and prevent the receipt or disbursement of an existing appropriation of §185,000. The issues presented in this case are substantially the same as those in the Nicholls case.
This court has appellate jurisdiction of this cause ratione materise.
HI.
The third ground assigned for the dismissal of the appeal is essentially the same, in purport if not in terms, as the exceptions *100which were urged in the court below, against its authority to grant the relief prayed for; and same were, on the trial, sustained in the court below. In his reasons for judgment the judge a quo says, after making a statement of the case:
“There is no provision in Act 63 of 1888, or elsewhere in the law of this State, which subjects to judicial review or control this power of removal which said Section 4 confers upon the Mayor.”
He then gives a résumé of authority on the question, and concludes thus:
“From these authorities I conclude that the power conferred on the Mayor by said Section 4 of the Act of 1888 is absolute, and that his act in removing the relators can not be questioned or interfered with by the courts, unless, as the relators contend, that section isviolative of the organic,law, and ergo void.”
Taking these reasons as the foundation of his judgment, and,, necessarily, an appeal therefrom presents the question of the correctness of the judgment. Therefore, while, as matter of law, the-exceptions tendered may have been good and properly sustained in. the court a qua, same may, on appeal, be considered and found sufficient for an affirmance of the judgment appealed from; yet it is a non sequitur that they furnish grounds for the dismissal of the appeal. For in order to determine that question we must, of necessity, assume jurisdiction of the cause. The appeal invites this court to decide that the District Court erred in sustaining those exceptions, and appellee meets this invitation with a motion to dismiss the-appeal, because the District Judge properly sustained them. Obviously, this court can not, in the exercise of appellate jurisdiction, make any order or render any judgment other than such order or decree as the judge below should have rendered. An appellate court exercises just such power as the court of first instance possessed, but in a different way; and the fact that the court below exercised it properly is no ground for the dismissal of the appeal, while it is fdrthe affirmance of the judgment.
This ground furnishes no cause for the dismissal of the appeal.
Our conclusion is that none of the objections are well taken, and that same should be overruled.
And it is so ordered.
Mr. Justice Breaux concurs in the decree.