I concur in the views expressed by Judge Bullard, on the question before us, and do not know that I can make them stronger by any additional remarks ; but I wish it to be distinctly understood that the majority of this court, in sustaining the appointments which gave rise to this controversy, do not do it on the ground assumed in the argument, that there is in the executive of this State a right of removal, which is incidental to his power of appointment. We hold, on the contrary, 1 believe unanimously, that the Governor alone, or the Governor and Senate, have no such power. It is clear, that the framers of our Constitution had in view the doctrine which had obtained under the Federal Government, that the power of removal belonged to the President alone, as an incident to his power of appointment, when they made it the duty of the Legislature to determine the duration of the several public officers, and prescribed a specific mode of removal for all civil officers ; 8th sec. of art, 6 o.f the Constitution. Had the Legislature complied with this injunction of the Constitution and fixed the duration of these offices, the present difficulty could not have arisen. Their failure to do so presents, in my opinion, the question, not whether the Governor had the right of removing the *373plaintiffs, but whether he had that of making new appointments. It can hardly be questioned, that by the terms of the law of 1S05, the Governor had the right of renewing his appointments when ever he deemed it necessary. If such was the original tenure of the office, has it been changed by the Constitution, or by any subsequent law ? The only modification I can perceive, relates, not to the tenure of the office, but to the manner of making these appointments, which, like all others, must now be made by and with the advice and consent of the Senate. B. & C.’s Dig. p. 14. 9th section of article 11 of the Constitution. The concurrence of these two authorities being required to make new appointments to these offices, none, I apprehend, can be made during the recess of the Legislature, except when vacancies occur, as provided for by the 10th section of the 3d article of the Constitution. The Governor and the Senate then have, in my opinion, the right of making new appointments whenever they think it expedient, and will continue to have, and enjoy such right, until the tenure of the office is changed. When they exercise this right of appointment, the former incumbents, to be sure, go out of office, but this happens not by a removal of the Governor and Senate, but in consequence of the new appointments ; their commission expires in the manner provided for by the law of 1805, which has been kept in force by the Constitution itself, and which provides, that “ all laws now in force in this Territory, not inconsistent with this Constitution, shall continue and remain in full effect, until repealed by the Legislature.” 4th section of the Schedule. I can see no inconsistency between that law and any article of the Constitution The 8th section of the 6th article of that instrument, to which it is supposed to be repugnant, treats of the manner of removing from office, all civil officers ; while the law of 1805 provides for the manner of appointing the Master and Port Wardens of the Port of New Orleans. The duration of these offices not having been determined, they are not necessarily to be held during the lifetime of the incumbents ; but, according to the original tenure, they are to remain in office until superseded by new appointments, or until removed, like any other civil officer of the State, in one of the modes pointed out by the Constitution. It is true, that the singular anomaly is presented, that although the Governor and. Senate *374are without the power to remove the incumbents, it is lawful for them to do an act, which, in its consequences, brings about the same result. It is, nevertheless, an appointment, not a removal, because the removal is only a consequence of the act of appointment. The Governor alone, or the Governor and Senate, would have vainly attempted to remove ihe Master and Wardens of the Port of New Orleans, without making new appointments, because the power of removal does not reside in them. But their power of appointment, under the law of 1805, is not the less legal and constitutional, because it may have for its consequence the removal of the former ihcumbents. It may sometimes happen, that in performing an act perfectly constitutional in itself, an object may be accomplished indirectly, which could not be constitutionally done in a direct manner. Thus, although Judges cannot be removed except by impeachment, or on the address of three-fourths of each house of the General Assembly, the courts over which they preside, may be abolished by the Governor and a bare majority of the two houses. This act of legislation, which the defects of an existing system may have imperiously called for, would produce, as a necessary consequence, the removal of the incumbents ; and yet, it could not, I apprehend, on that account be pronounced unconstitutional. Of this, we have had an instance in our own State. In 1825, it was thought conducive to a proper administration of justice within the limits of New Orleans, to estab’ish a City Court, composed of one Presiding Judge and of four Associate Judges, instead of the Justices of the Peace, who were then in commission. A law was passed, repealing the acts creating those inferior tribunals, and thus the incumbents were displaced, in consequence of an act constitutional in itself. B. & O.’s Dig. p. 213. I therefore conclude, that the appointments by the Governor and Senate, have been legally and constitutionally made, and that they have put an end to the commissions of the former incumbents.
Simon, J. I have attentively examined the opinion prepared by Judge Bullard. It meets fully my views upon the important question therein investigated, and is the exact expression of the ideas which have lead me to the same conclusion.
I think that the power given to the Governor by the territorial *375law of 1805, to appoint the officers therein denominated, as often as shall be necessary is not contrary to, or inconsistent with, any of the provisions of the Constitution of the State ; that such power, which cannot now be exercised without the advice and consent of the Senate, is not an infringement of the Constitution ; and that the offices created by the territorial lav/, being not to be holden during good behavior, ox for life, may be considered, under our Constitution, as being limited to the time which the Govern- or and the Senate may think necessary to fix, by re-appointing new officers to supersede the former incumbents.
I deem it, therefore, sufficient to state, that I concur fully with the opinion read by my colleague, Judge Bullard, which is the opinion of the majority of the members of this court.