
    H. B. Kelly v. James P. Gilly.
    Under the Constitution and laws of the State, the appointment of a notary is for four years, and the person appointed has the right to hold the office for that term.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    
    
      G. Schmidt, for plaintiff.
    
      Micou, for defendant.
   Eustis, C. J. being absent the judges of the court delivered their opinions seriatim.

Preston, J.

H. B. Kelly, Esq. allleges that he has been appointed a notary public of the city of New Orleans in the place of James P. Gilly, whose term of office has expired, and prays a writ of mandamus to compel the latter to deliver to him the records of his office. Gilly alleges that his term of office has not expired.

He shows a commission from the governor to fill the vacancy which occurred during the recess of the Senate by the resignation of S. W. Waters, dated the 4th of December, 1846. He was nominated by the governor and, with the advice ' and consent of the Senate, appointed at the ensuing session of the General Assembly, as appears by a commission issued to him, dated the 3d of May, 1847. This is the usual and legal mode of filling vacancies in office, and completing the appointments adopted by our executive and Senate. We consider, therefore, that the appointment of Gilly took place on the 4th December, 1846, that the oath taken by him at that time was his oath of office, and that his nomination to the Senate and confirmation, was the constitutional mode of completing the appointment.

The governor was authorized, by the act of 1813, to appoint as many notaries as he deemed necessaiy. The office was held during good behavior, there being no term limited by the law. The Constitution limited the duration of the office to four years. Every person appointed a notaiy is, therefore, entitled to hold the office for four years from the date of his appointment. a

The law does not require the governor to fill vacancies as to the office of notary public, but to appoint the notaries that may be necessary. It has been usual, when a notary dies or resigns, for the governor to appoint another notary, and give him charge of the vacant office in the commission, and of course of the records. This is not required by the law; but results from the duty of the governor, as the supreme executive, to take care of and preserve the public property and records where the laws have not otherwise provided. The records belong, not so much by law as by usage, to the newly appointed notary, and he does not fill the unexpired term of his predecessor, but is appointed a notary under the act of 1813, and, by the Constitution, is entitled to hold the office for four years from the date of his appointment.

I am of opinion that James P. Gilly was duly appointed and qualified a notary in December, 1846, and entitled to hold the office for four years from the date of his appointment, and that his term of office, consequently, has not expired.

The judgment of the district court is therefore reversed, and the petition in this case dismissed with costs.

Rost, J.

I agree with my brethren in the judgment rendered, but I am of opinion that the defendant could take the oath at any time, under the commission issued in his favor on the 3d of May, 1847, and that as he has done so he is entitled to hold office under it for four years. It appears by the published journal of the secret sessions of the Senate, that the plaintiff was nominated and confirmed in place of the defendant, whose commission was to expire on the 3d of May, 1851. We could not act upon that fact and disregard the commission which says that the office is vacant; but I am satisfied, aliunde, that there will be no vacancy before that time.

It is therefore decreed, that the judgment of the court below be reversed, and ■ that the petition of the relator be dismissed; the costs in both courts to be paid by the relator.

Slidell, J.

I concur in the opinion expressed by Judge Preston, that the appointment of May, 1847, was understood by the executive and the appointee as a confirmation of the appointment of December, 1846, although the words “as successor of Waters,” or “in place of Waters, resigned,” are not contained in the appointment first mentioned. I, therefore, consider Gilly as holding under an appointment dating from the 4th day of December, 1846.

For the purposes of the present case, I consider the omission of Gilly to take a new oath upon receiving the second commission immaterial.

By the act of 1813, the office of notary was to be held during good behavior. By the operation of the 96th article of the Constitution, and in the absence of any legislation fixing a shorter term, the term of the office of notary is one of four years, and he is not in my opinion removable by the executive.

The governor has by law the power of appointing notaries, and no precise time being assigned for the commencement and termination of the office, the time from which the constitutional term of four years commences to run is, in my opinion, the date of the commission.

In Bry v. Woodruff, the office involved was that of president of the board of public works. The appointment was required by the statute to be made biennially. So in the ease of judges, under our present Constitution, definite periods are established for the beginning and end of each term of office; and any exercise of the appointing power between those periods would be for the unexpired terms. Thus, the judge who succeeded Judge King on this bench, received a commission for the unexpired term of Judge King, and then a commission for eight years, dating from the expiration of Judge King’s term. See also act of February 11, 1825. But where no precise time for the beginning and termination of an office is fixed, the officer, I think, takes the office not for the unexpired term of his predecessor, but for the constitutional or legal term of the office, dating from his appointment.

The executive did not appoint Gilly for the unexpii-ed term of Waters who resigned. The expression “ in place of Waters who has resigned,” I conceive to be a designation of Gilly as the person who was to take the official records of Waters. I refer, upon this matter, to the remarks of Judge Preston.

I therefore conclude that the term of Gilly has not expired. The commisson of Kelly issued upon a mistake as to Gilly's tenure, and is, in my opinion, for the present, at least, inoperative against Gilly.

I am of opinion that the judgment should be reversed, and the proceeding dismissed at the costs of the relator.  