ON APPLICATION FOR A REHEARING.
MOUTON, J.In the application, for a .rehearing relator says that the question as to what was the population of Opelousas at the time the vacancy occurred in the Office of Alderman at Large is one of fact to he determined by any species of legal evidence. Applicant then says that in our decision we did not undertake to say that the Federal census is not the exclusive method of ascertaining the population of a municipality or city. In referring to the McFarlain vs. Town of Jennings, 106 La. 541, 31 South. 62, we distinctly stated that the Federal census should not he accepted as the means of ascertaining the population *576of cities or municipalities of this State. Applicant then refers to McFarlain vs. Town of Jennings, 106 La. 541, 31 South. 62, and from that decision quotes the following: “We think legislation is desirable to provide means for ascertaining the number of persons, but when a power is granted and the law-making power is silent, as in this case, it then becomes a question to be ascertained by a method usually followed in the course of municipal administration”.
In that case the question was as to whether or not the Town of Jennings had a population exceeding two thousand so as to give it authority under section 17, of Act 136, 1898, to regulate or prevent the roaming of cattle at large. A census was first taken by the daughter of the Mayor, and subsequently another one, both showing that the Town had a population in excess of two thousand inhabitants. The court in that case held that the State or United States census should not control in ascertaining the population’ of a town, city or municipality, and said that the Town of Jennings had the authority to establish the number of its inhabitants by the census it had taken. This conclusion of the court, it will be seen by reading page 544 of the opinion, was based on several decisions where it had been held that the Legislature had failed to point out a method to determine the number of persons inhabiting a town or municipality. This is made clear by the following language in which the court refers to these decisions quoting: “In each of these cases it became necessary ’to establish the population of municipal corporations in which the law-making power had failed to make provision for ascertaining the number of persons.” This is certainly not the case here, as Act 59, of 1902, specifically provides for the taking of a .census for the classification of the municipalities of this State. This statute specially requires, however, that after a census is taken for the proper classification of a municipality the municipal author-' ities- shall certify the fact to the Governor, duly sworn to by the person employed by such city, town or village, to take such census, the Governor shall investigate the facts; and if he finds the municipality to be wrongfully classed, he shall issue his proclamation in accordance with the facts, and shall correctly classify it, transmitting a copy of his proclamation to thé mayor of such city, town or village, such proclamation shall be published and recorded by the municipal authorities of the city, town or village, as an ordinance is required to be published and recorded, and shall be conclusive from its issuance of the matter determined by it until there be a new classification under the provisions of this Act.
As we stated in our original opinion the classification of Opelousas as a City was not effected under the Blanchard administration because the proclamation of Governor Blanchard was never “recorded or published”. Simar vs. Town of Iota, 149 La. 332, 89 South. 22. We also held that the census taken by Mr. Guidry was ineffective because he had not followed the requirements of Act 59 of 1902, for the reasons stated in our opinion and which it is unnecessary to repeat in passing on this motion. Evidently, the Town of Opelousas had authorized Mr. Guidry to take the census for the purpose of establishing the fact that it had a population exceeding 5000, and to have it classified as a City, else there would have been no reason for the census. The law specifically authorized such a census, but clearly points out the statutory requirements to be observed. Such being the situation here, it can not be said as was held in 106 La. 542, upon which relator relies “that when a power is granted and the law-making power is silent, as in this case, it then becomes a question to be ascertained *577by a method usually followed in the course of municipal administration.” In the instant case, the law-making power is not silent, but on the contrary is direct, clear and specific. The Guidry census does not comply with the essential provisions of Act 59 of 1902, and is not proof that the population of Opelousas exceeded 5000 inhabitants at the time the appointment was made or this case was tried. There is no legal proof to take 'it out of its original classification under the Federal census of 1890, as'we have theretofore held.
In Act 136, 1898, it will be noted that municipalities having a population of 5000 or more are classified as cities, those having “less than five thousand” as towns. Act 236, of 1916, which confers on the Governor the power of appointment to fill vacancies occurring in the office of Aider-man, gives this right to municipalities “having a population of less than five thousand.” Evidently, this power was vested in the Chief Executive on the assumption that the various municipalities of the State had changed their status since the adoption of Act 136 of 1898, and had, been properly classified. This is the only guide the Governor can have in exercising this executive function of appointment when a vacancy occurs in a municipality with a population under five thousand. In a situation such as this, with the duty devolving upon him to appoint, it can not be said that in filling a vacancy under the circumstances stated, that he has exceeded his authority, has illegally issued a commission to his appointee, subjecting him to be ousted from office under the intrusion in office act, which, as we construe its provisions, was not enacted to. afford relief in a case of this character.
For the foregoing reasons, and those expressed in our original opinion, a copy of which is hereto annexed, the rehearing applied for is refused.