Concurring Opinion.
Watkins, J.The statement of this ease is best given in the Ian - guage of the relator’s petition, thus:
“That your relator was, on the 22d day of April, 1892, elected Recorder of the Pirst Recorder’s Oourt of the Oity of New Orleans, for the term of four (4) years.
“That he was thereafter duly commissioned, qualified and took possession of, and enjoyed the office of Recorder of the Pirst Recorder’s Oourt of the Oity of New Orleans, until the 18th day of January, 1894, when one Thomas R. Adams did usurp, intrude into and unlawfully take possession of the said office of Recorder of the Pirst Recorder’s Oourt of the Oity of New Orleans, and has ever since continued to usurp, intrude into, unlawfully hold and exercise the functions of said office, to which your relator is lawfully entitled, and which he has the right to exercise.
“ That the said Thomas R. Adams claims the said office by virtue of a certain alleged order of the Mayor of the City of New Orleans, suspending your relator as Recorder of said court, and by virtue of certain alleged proceedings taken by the Common Council of the City of New Orleans, through its Committee on Public Order, as also through all of its members, sitting as an alleged court of impeachment, to remove your relator from the office aforesaid.
1 ‘ That said alleged order of suspension, and said proceedings of said City Council are all taken under authority alleged to be vested in said Mayor and said Common Council, and its Committee of Public Order, under the Charter of said Oity, being Act No. 20 of the Acts of the Legislature of the State of Louisiana for the year 1882, and especially under See. 19, and Secs. 58 to 62, inclusive, of said Act.
“ Relator further avers that said Act of the Legislature of the year 1882, and especially the hereinabove named sections of said Act, in *837so far as the same purport to confer upon the Mayor of the City of New Orleans, or the members of the Common Council of said City, or any number of them, any power to suspend your relator as Recorder of said Court, or to remove him from his office as Recorder of said Court, are unconstitutional, null and void, for this, that the said Act, in so far as it vests any power in said City Council or in said Mayor to suspend or remove your relator from office, vests in said Mayor and Common Council judicial functions, in violation of Arts, lé and 15 of the Constitution of the State of Louisiana, and it also violates Arts. 193 and 201 of said Constitution, which confer upon the Civil District Court for the Parish of Orleans alone the power of removing your relator from said office.
“ That the said Thomas R. Adams, notwithstanding the premises, pretends and claims that he has the right to exercise the duties of the First Recorder’s Court of the City of New Orleans; that he is entitled to perform the duties of said office, and to receive the salary thereof, notwithstanding the fact that your relator is not sick, nor absent from the City of New Orleans, nor legally suspended from office.”
The prayer of the petition is that the said Thomas R. Adams may be ousted from the said claim, and debarred from asserting the same against relator; that it may be adjudged and decreed that he is the Judge of said First Recorder’s Court, and entitled to perform its functions and to receive its profits, honors and emoluments, notwithstanding said order of suspension and the proceedings of the City Oouncil looking to his impeachment and removal from office.
The answer is, practically, a general denial, coupled with an averment of the Mayor’s right to suspend the relator from the performance of the duties of his office, under the powers vested in him by law.
It further avers that the provisions of the City Charter in no manner conflict with the Constitution, the relator being a municipal, and not a constitutional officer. That recorders’ courts in the City of New Orleans were for the first time created by the City Charter of 1882, and for that reason the provisions of the Constitution (adopted jU 1879) did not include the judges of these recorders’ courts. That, as these offices were crea ed by the Legislature, io was competent for it to indicate the mode of electing and displacing the incumbents ■of them; and, for that reason, the act of the Legislature does not come in conflict with the Constitution.
*838On these issues the case was tried and judgment was pronounced in favor of the relator, and the respondent has appealed.
' The Judge a quo assigned as his “reasons for judgment ” that the relator is a municipal officer, and comes within the designation and provisions of Art. 201 of the Oonstitution, viz.: “ and all other, parish, municipal and ward officers;” and that “the formidable power and responsibility of removal having been, by the sovereign will, formulated in the Oonstitution, lodged in the judiciary alone, can not be delegated by the Legislature — a co-ordinate department of the State government — to another body of magistracy. A consideration of Arts. 14 and 15 of the Oonstitution makes this conclusion more inevitable and imperative. “The Mayor and Oommon Oouncil are without power in the premises.”
It is evident that the judge a quo accepted the theory of relator’s counsel, as set out in his petition, to the effect that the legislative grant of power to the Oommon Oouncil of the Oity of New Orleans— Act 20 of 1882 — to impeach, and to the Mayor to suspend a municipal officer, is unconstitutional and void, because it is a judicial power of removal, which, by the terms of Art. 201 of the Oonstitution, is confided exclusively to the Civil District Court, and, consequently, can not be exercised by any other department of the State government, “ nor by any person or collection of persons holding office in them.” Arts. 14 and 15 of Oonstitution of 1879. And it is equally evident that this supposed conflict between the Oity Charter and the Oonstitution arises from the fact that the power conferred on the Oommon Oouncil and the Mayor is the same power that is conferred on the Civil District Court; otherwise, Arts. 14 and 15 of the Oonstitution would have no applicability to the question under consideration.
No other ground is assigned for the unconstitutionality of the Oity Charter, and no other can be considered. This supposition of counsel must be correct, otherwise the position assumed is illogical. And attention is attracted at this time to the position that is assumed by the relator in order to disembarrass the argument of any reference to the question of the constitutional authority of the Legislature to impart political power to the municipality of New Orleans.
But, is the legislative grant of the power of removal by impeachment which the Oity Charter confers upon the Oommon Council of ‘-he Oity of New Orleans, and the power of suspension conferred upon *839the Mayor, in any sense a judicial power, incompatible with the power that is conferred by Art. 201 of the Constitution on the Civil District Court?
That question was, in effect, decided just the other way in State ex rel. Behan vs. Judge, 35 An. 1075. That was a case of prohibition-issued by this court against one of the Judges of the Civil District Court, who had granted an injunction restraining and prohibiting the Common Council of the City of New Orleans from further proceeding with the impeachment of City Treasurer Walsh, and the Mayor from in any manner interfering with said Treasurer in the possession and administration of his said office.
“The preliminary writ of injunction,” says the Court, “was granted at the instance and request of the Treasurer, and was predicated mainly on his allegations, and on the District Judge’s opinion, that the provisions of the City Charter' which authorize the removal of City officials by impeachment by the City Council were in direct violation of the Constitution.”
And in its analysis of the respondent judge’s defence to the writ of prohibition the court said:
‘ ‘ The alleged unconstitutionality of the proceedings is (subject) to two subdivisions, viz.: (1) that in organizing a court of impeachment, the City Council was usurping judicial functions, in violation of Arts. 14 and 15 of the State Constitution; (2) that the provisions of the City Charter on the subject of impeachment were violative of thej Constitution, Arts. 196 and 201, which had conferred (upon) the judiciary department the sole power of removing municipal officers.”
And in considering and disposing of that de.'ence, the court found the municipal corporation was controlled by a legislative charter, which had then been recently granted in pursuance of the authority delegated by the 254th article of the Constitution' — -this charter specifically recognizing the inherent power of amotion of municipal officers as existing in the corporation, and making additional provision for the exercise of that power by impeachment. •
“ We therefore hold,” said the court, in summing up its opinion on the two propositions above stated, “ both in reason and on abundant authority, that no court of justice had the legal power to interfere, by preliminary injunction, with the municipal council in the *840exercise of that franchise, one of its plainest and most essential ádministrative functions,” etc.
Entertaining this opinion, the court, of necessity, made the writ of prohibition peremptory, and the twofold effect of the judgment was, first, to maintain the perfect consonance of the impeachment proceedings of the Common Council, with removal proceedings contemplated under Art. 201 of the Constitution, because the former were legislative and the latter were judicial; second, because the power of amotion of municipal officers is inherent in all municipal •corporations, entirely distinct from and independent of the power of removal provided for in the 201st article of the Constitution; which inherent power of amotion found expression in the City Charter in the shape of provisions looking to the impeachment of such municipal officers.
That decision clearly shows that the power of impeachment is not a judicial but a legislative function, and being a legislative function the power of impeachment did not come in conflict with Arts. 201, or 14 or 15 of the Constitution.
That decision proceeds on the theory that the act of the Legislature did not confer a power of removal per se — being examined and considered extrinsically — but recognized the existence of a power of amotion that is inherent in all municipal corporations, and apparently conferred upon the Common Council of New Orleans authority to exercise it by means of impeachment.
Yet the court did not pass upon the question of the constitutional right of the Legislature to provide that means of amotion, but distinctly left that question open for future settlement.
A careful examination and consideration of the principles announced in the Behan ease clearly indicate that they must control the decision of the present case, because the issues are almost identical.
In that case the Common Council had inaugurated impeachment proceedings for the amotion of th6 City Treasurer for certain crimes and misdemeanors specified in the City Charter, and said treasurer resorted to an injunction in the Civil District Court for the purpose of arresting their further progress, and to prevent his suspension from office by the Mayor, pending the trial of the impeachment.
In this case the same council inaugurated like impeachment proceedings for the amotion of the relator as City Recorder for certain *841•causes assigned in the City Charter, and relator resorted to this suit in the Civil District Court for the purpose of ousting the respondent from the office to which he had been elected, and from which he had been suspended by the Mayor, pending the impeachment trial — ■ relator contending that his suspension and respondent’s appointment were illegal, because of the illegality of the impeachment proceedings resulting from the unconstitutionality of the City Charter in that particular.
The only possible difference that is discoverable between the two cases is in the fact that the impeachment proceedings have gone a little further in this case than they had in the Behan case — the Mayor having actually suspended the relator and appointed the respondent in his stead to act ad interim.
This being the exact situation of the case, was not the Civil District Court asked to do just what it was prohibited from doing in the Behan case — namely, restrain impeachment proceedings of the City Council? And does not this appeal invite this court to undo w'hat that court has done, on the same ground and for like reason that it made Mayor Behan’s writ of prohibition peremptory? Undoubtedly it does.
Realizing, doubtless, the difficulty of this situation, counsel for relator attempts, by argument, to break the conclusive force of the Behan caso, by citing from the opinion that paragraph in which the court states that the view taken of that controversy obviated the “ necessity of passing on the alleged unconstitutionality of the City Charter on the subject of impeachment ” — the court holding that its conviction was clear to the effect that the District Court had wrongfully exceeded the bounds of its jurisdiction in enjoining the City Council in the exercise of its power of amotion of a municipal officer, albeit the process of amoting the officer was by statutory impeachment. But it seems clear that counsel entertain a proper conception of the distinction that was made by the court when they make, in their brief, the following statement:
“ In the Behan case a judge of the Civil District Court had enjoined the City Council from prosecuting impeachment proceedings against Walshe. The Supreme Court issued a writ of prohibition against this exercise of jurisdiction by the District Court upon the old and well settled principle that a court will not interfere with the legislative or grwasi-legislative proceedings of a municipal body, but *842will restrict its interference to a protection of persons and property against unlawful interference with rights by any one claiming under color of a void municipal ordinance or resolution. This was the decision in the Behan case, and anything else was clearly dictum,."
But, as is shown in this argument, this controversy is in the identical situation of the Behan case — Whitaker, recorder, and Walsh, treasurer, occupying identically the same plane as municipal officers, and equally without right of action in the Civil District Court to arrest the impeachment proceedings pendente lite.
And while the proposition announced by counsel for relator, that the jurisdiction of the Civil District Court will be recognized — and was in the Behan case recognized — to protect the rights of “persons and property against unlawful interference by any one claiming under a void municipal ordinance or resolution,” may be accepted as correct as a general proposition, yet it does not go to the extent counsel claim it does. The theory of the court doubtless was that the rights of persons and property could be tested and determined by the courts after the impeachment proceedings were carried to the period of finality, and not while they were in motion; for, non constat, that the impeachment court would fail of convicting the municipal incumbent. But that, in the event of conviction, the removed official might then test before the courts of justice the constitutionality of the law which conferred the power to impeach; or, in other words, whether the terms and provisions of the Constitution were sufficiently broad and comprehensive to permit the General Assembly to confer on the municipal corporation the legislative power of impeachment as a means of amotion of municipal officer, and to entail as a consequence future deprivation of the right of the incumbent to hold municipal office.
But that is not the present situation of the Whitaker case. The impeachment court has not yet disposed of the questions before it, and having as yet arrived at no conclusion, and rendered no judgment, the stage at which the jurisdiction of the courts has its inception has not been reached.
My conclusion is that in so far as the question of the unconstitutionality of the City Charter, on the ground that it is an attempt to vest in the Common Council of the City of New Orleans and the Mayor a power of removal that, by the Constitution, is exclusively conferred on the Civil District Court of New Orleans, is concerned, it must *843be answered in the negative; and that, in so far as the question of the constitutional power of the General Assembly to vest in the Common Council of the City of New Orleans the power of impeaching municipal officers, and entailing, as a consequence of conviction, deprivation of the right of the ousted official to thereafter hold municipal office, is concerned, no authoritative opinion can be now pronounced, because (1) it is not made an issue in this case; and (2) it can become a question for the courts only when the impeachment proceedings have been completed, and the rights of persons or property are properly put at issue thereunder, and said proceedings and decree are set up as the foundation of some right or claim, or same are relied upon as the muniment of some title to office.
For these reasons I concur in the opinion and decree reversing the judgment appealed.