Dissenting Opinion.
Miller, J.My examination has brought me to a conclusion different from that reached by the majority of the court in this case.
The question is whether the relator, the Recorder of the First Recorder’s Court of the City of New Orleans, to which he was duly elected under the law creating it, can be removed by the order of the Mayor of the City, and under color of impeachment proceedings of the City Council. The Constitution of the State, under the rubric “ Impeachment and removals from office,” provides that district attorneys, clerks of court, sheriffs, coroners, recorders, justices of the peace, and all other parish, municipal and ward officers, shall be removed by judgment of the District Court of the domicile of such officer, specifies the mode of procedure and court, and designates the Civil District Court of the Parish of Orleans as the tribunal for all removal proceedings against officials filling offices in this Parish. Other articles under the same rubric deal with the impeachment and removal from office of the Governor and other constitutional officers of the executive department. The removal of the judges is provided for in another article, and there is found the provisions for the removal of recorders. (Const., Arts. 196 et seq., 201.) The article expressly mentions his office; and to make the scope of the provision more emphatic, declares that all other parish, municipal and ward officers are intended to be embraced. The Constitution uses the term “impeachment” only with reference to the Governor and other heads of the executive department. In dealing with the judges and municipal officers the words “shall be removed” are used. While impeachment has'a larger significance than removal, it certainly includes removal from office. The Constitution specifies the causes for impeachment and *846removals, and embracing every conceivable cause, thus: High crimes and misdemeanors, non-feasance or malfeasance in office, incompetency, corruption, favoritism, extortion or oppression in office, gross misconduct or habitual drunkenness. With this enumeration of causes, and of all the executive, judicial, parish, ward and municipal offices, the Constitution confides the impeachment and removal power to the Senate and House in respect to the Governor and chief executive officers, and to the courts is entrusted the removal of the judicial and parish and municipal officers. It seems to me the Constitution manifests plainly that the whole power of impeachment and removal from office was to be exerted solely by the instrumentality specified in the Constitution. There is plainly exhibited the appreciation that the power was judicial in its nature. Following the precedent of the Constitution of the United States, it clothed the House of Representatives with the function of preferring articles of impeachment of the higher State officers, and their trial is to be by the Senate, vested for that purpose with judicial powers, the highest judicial officer of the State, the Chief Justice, presiding. In respect to judicial and other officers, including recorders and all municipal officers, the courts are designated to exert the power of removal. It is, in my opinion, useless to discuss whether the power of removal of officers like recorders, on general principles, pertains at all to the City Council. All will recognize that it was for the framers of the Constitution to determine whether the grave power of removal from office, carrying with it the stain on character necessarily implied, should be vested in a body like the City Council, or reposed in that department of the government better qualified, from its structure and modes of proceeding, to deal with such questions. In my view, the Constitution expresses in the clearest language that the power of removal is not in the City Council, but in the courts. The opinion of the majority of this court affirms that notwithstanding the constitutional provisions on this subject, the power to remove the incumbent of the office of recorder, created by legislative act, is in the City Council. Const., Arts. 196, 201; Act No. 20 of 1882, Secs. 80, 58 et seq.
I can not appreciate the argument that there can be an impeachment or removal power in the courts by vir.ue of the Constitution, and the same power, whether called impeachment or removal, and for precisely the same causes as are prescribed by the Constitution, *847vested in the Oity Council. I see no purpose in the Constitution- to leave that power to be exerted by the courts or by the council. No such view, it is reasonable to suppose, ever occurred to the framers of the Constitution. When the organic law confided the power to the courts, in any reasonable construction it must be deemed to have intended the exclusion of any other instrumentality. Nor can I see the force of the argument that, because the recorders as now constituted are named in the City Charter of 1882, that therefore the Constitution framed in 1879 has no application to recorders. The Constitution announced a policy for the future as well as the present. It refers specifically to recorders known to the law since 1805 as exerting judicial functions in this city. The constitutional provisions in Art. 201 applied to the office of recorder as then existing, and to the same office thereafter modified or created by subsequent legislation. As soon as the act of 1882 was passed the Constitution applied itself to the office of recorder named in that act, and fixed for all time as long as the Constitution should endure the power of removal in the courts. No refinement of language nor of meaning can take recorders out of the scope of Art. 201. If the mode of removing recorders is not prescribed by that article, with equal reason it might be said sheriffs or coroners are not embraced. Recorders, sheriffs and coroners are named and ex industria, “all municipal and parish officers,” is added. The contention then admits consistently of no support that the Constitution does not provide for the removal of recorders. Is it now to be maintained that consistently with the constitutional provisions the Legislature could by the Act of 1882 provide another method of removal? Least of all, can I understand that the decision in the Behan case (35 An. 1075) controls the question here. It is familiar that courts never enjoin legislative bodies. The Behan case was an injunction to restrain the council from continuing pending impeachment proceedings against the City Treasurer. The issue was simply and only whether such injunction could issue. That determination disposed of the controversy. All the reasoning of the court was limited in legal effect to the point presented. The impeachment was never consummated. How then can it be affirmed that the court in that case determined the grave question here presented whether the impeachment is not exclusive in the courts? While the court in that case used language tending to affirm an impeachment power in the council, the reason*848.ing can not by any canon of construction be accepted as a decision of the issue here. Indeed, the view of the court in the Behan case seems to be announced thus:
“We are therefore clear in our conviction that in this ease the District Court has wrongfully exceeded the bounds of its jurisdiction, and that the proper and only efficient check is by the writ of prohibition. This view of the controversy obviates the necessity of passing on the alleged unconstitutionality of the City Charter on the subject of impeachment, which will be disposed of whenever it comes up in a proper proceeding.”
This is no case of an injunction to stay proceedings of the council. Right or wrong the council proceeds. But the ease calls on this court to determine whether the relator can be deprived of his office and emoluments by virtue of the council proceedings. While courts never interfere with the proceedings of legislative bodies, it is the-undoubted judicial function to determine the effect of such proceedings when they affect the rights of parties, and to protect such rights. That is the function this court is called to exercise. In its exercise the court must decide whether the removal power exists in any department but the courts, and in my opinion the question admits only of one answer, which finds apt expression in this language of the late Ohief Justice:
“ It is an axiomatic proposition that a Legislature is powerless to act where the Constitution has spoken and has left no room for its action. Hence, when a Constitution has provided for the qualification of certain officers, for their removal for certain causes, by certain authorities, and in a certain way, a Legislature is dncompetent to prescribe, as to those same officers, for different qualifications, different causes of removal, different authorities or different ways. It can neither add nor take from the constitutional provisions on those subjects, which must remain untouched and enforced as written.”
I think, too, that the previous adjudications of this court support the exclusiveness of the methods of removal prescribed by the Constitution. 34 An. 273; 35 An. 993.
In my opinion the relator is entitled to the relief he seeks.