State ex rel. George v. Tucker , 23 La. Ann. 139 ( 1871 )

IIowe, J.

The motion to dismiss has been waived.

This action was instituted under the provisions of the act of the Legislature (No. 156) of 1868, to test the right to the office of Recorder ■of Mortgages of the parish of Tangipahoa.

The parish was created by act of March 6,1869, which provides that within ten days after it should become a law, the Governor should appoint and commission for said parish a Recorder and certain other officials, and that the officers thus appointed and commissioned should continue in office until the election and qualification of their successors at the next general election in the State for such officers.

Under this law the defendant, Tucker, was appointed and commissioned Recorder March 13, 1869. He was not, however, confirmed by the Senate at the next sessiou. In March, 1870, the plaintiff, George, was appointed and confirmed by the Senate, and commissioned.

The judge below decided the controversy in favor of the defendant, on the ground that the special provisions of the act creating the parish above referred to, entitled him to hold the office until the next general election, (which had not at the time of the decision taken place), and that no confirmation by the Senate was necessary under the terms of this particular law.

The relator, who has appealed, contends that on the thirteenth March, 1869, the. day the defendant was appointed, there was an original vacancy existing in virtue of the creation of the office by the act establishing the parish ,• that the provisions of this act in respect of appointments must be construed with, and controlled by, those of the act of August 19, 1868, (No. 27), passed in compliance with article 120 of the Constitution and entitled “ An Act to determine the mode of filling vacancies in all offices for which provision is not made in the Constitution;” and that, in as much as by this general act a confirmation by the Senate is necessary, the appointment of the defendant was provisional, merely, and not being confirmed fell to the ground; and that therefore the plaintiff, appointed, confirmed and commissioned to fill this latter vacancy, must have the office.'

The views thus urged by plaintiff appear to us tó be the more correct. The act of 1868, No. 27, establishes a general system of appointment and confirmation, which is in harmony with that provided in the Constitution, in respect of offices especially named in that instrument. We will not presume that the Legislature meant to disturb this system in this special case, unless an. intention so to do be apparent in the provisions of the act under which the parties hereto were appointed. Such intention is not apparent. The latter act does not in words repeal or modify the former, nor does it do so by implication, since it is not inconsistent with it.

It is admitted that the plaintiff’s claim for damages should be dismissed as in case of nonsuit.

It is therefore ordered that the judgment appealed from be avoided and reversed, that the defendant, Alpheus Tucker, be excluded from the office of Recorder of the parish of Tangipahoa; that the plaintiff be placed in possession of the said office, and quieted therein; that his claim for damages be dismissed as of nonsuit, and that the defendant, pay the costs of both courts.

Rehearing refused.