
    The State v. Felix Percy.
    The limitation imposed by art. 96 of the New Constitution upon the duration of offices, applies to offices hold under the former Constitution and laws.
    The term of office of a notary appointed before the adoption of the New Constitution is limited to four years after its adoption.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    Upon the relation of A. A. Baudoin, John Gedge, for relator,
    contended: This case presents two questions : 1st. Have the governor and Senate the general right of appointment to this class of offices 1 2d. Had they the right to appoint to this particular one ?
    In examining the first question we naturally recur to the organic Jaw, to ascertain the power of the executive; and by referring to the Constitution, we find that his power of appointment to office ipsis verbis is given by the 50th article of that instrument. By this article “he shall nominate and by and with the advice of the Senate appoint all officers whose offices are established by this Constitution, and whose appointment is not therein provided for. Provided, however, that the Legislature shall have a right to prescribe the mode of appointment to all the offices established by law.”
    An examination of the Constitution shows that the office of notary public is not therein provided for. And the Statute book exhibits no act of the Legislature passed since the adoption of that instrument on the subject. It is not, however, to be imagined that either the Convention which framed the Constitution, or the successive Legislatures that have been held under it, were not fully alive to the importance of an office so essentially, nay indispensably, necessary under our existing system of laws. Such was not the case. The Constitution gave the power to the Legislature to provide for appointments to the office of notary by the proviso in art. 50 of the Constitution; but it was not made obligatory upon them to do so. It was not made obligatory upon the Legislature to do so, because it was well known, that there was an existing law for such appointments, which was maintained in force by article 142 of the Constitution, which provides that “all laws in force at the’time of the adoption of the Constitution, and not inconsistent therewith, shall continue as if the same had notbeen adopted.” The Legislature, therefore, has not been in fault for not malting any new provision on the subject. It was left to its discretion to act; and who shall say that it has done unwisely in not acting ? It is well known that the Convention was much divided in opinion upon the subject, both as to the method of appointment to the notarial office, and its tenure. That division of opinion was shared by the public then and now; and we cannot be surprised that the Legislature, participating those feelings, should prefer to leave the existing law untouched, until discussion and experience should point out a better.
    This law providing for the appointment of notaries, is entitled “An act providing for the appointment and mode of appointment of the officers therein mentioned.” Approved March 20th, 1813 — to be found at pages 18 and 19 of Moreau’s Digest. The part relative to notaries is contained in section 1st, and is as follows : “And that there shall also be appointed as many notaries public as may be deemed necessary, who shall remain in office during good behavior,” • &c. And section 2d provides that, “the governor shall nominate and by and with the advice and consent of the Senate shall appoint all and every officer,” &c. This law is maintained by art. 142 of the Constitution, not being inconsistentwith that instrument except in one part, which will be considered in the examination of the second question. It is the only law upon the subject to be found in our statute books ; it is that under which the defendant held his appointment; under which every notary that has been appointed in the parish of Orleans since its date was authorised to act; and which at this day is not open to dispute or cavil. This law, therefore, gives to the governor the power at the present day to “nominate and by and with the advice and consent of the Senate to appoint as many notaries public ns may be deemed necessnry.” The necessity heretofore recognised was the creation of new offices when the public convenience required it, or when the death, resignation or lawful removal of incumbents required their places to be filled by new appointments. The enquiry then arises, whether the present Constitution has not created a necessity for the exercise of the appointing power thus vested in the Governor and Senate; which naturally leads to the examination of the second question.
    We contend that this necessity has arisen. The defendant held his appointment under the act of 1843, and the tenure of his office was during good behavior, so long as that act remained unchanged. It was maintained by the New Constitution, so far as not inconsistent with its provisions; it was changed in every respect where that inconsistency is found; and that is in the tenure of the office; for article 96 provides that “the duration of all offices not fixed by the Constitution shall never exceed four years.”
    The most favorable construction, therefore, that can be given for the tenure of office of the defendant is, that he was entitled to hold it under his original appointment until four years should have elapsed since the adoption of the New Constitution; unless the Legislature should (as it is admitted and cannot be contradicted they had a right to do so,) have provided some new law on the subject within the limits of the Constitution. Now, the governor is bound by law and his oath to support and maintain this Constitution; and it is his duty to put in force every existing law that will enable him to perform this duty. He found a law which authorised him to appoint to this office when necessity required it. That necessity was created by the Constitution he was sworn to support, and all good citizens are bound to obey. It imperatively declared that no office^ should be held for a longer term than four years; and consequently it compelled him to exercise that authority which was vested in him by law and contemplated by the Constitution, to fill all offices which had endured for that period by a new appointment, either of the actual incumbent or another person. As it was thus his duty it was also his right. We believe that we have now established the two questions on which this case rests affirmatively.
    It was, however, contended in the lower court, and will doubtlessly be in this, that the 144th article of the Constitution, which provides that “in .order that no inconvenience may result to the public service from the taking effect of this Constitution no office shall be superseded thereby, &c.,” maintains the law of 1813 in full force in every respect until it be changed by the Legislature, because the article goes on further to say, “but the laws of the State relative to the duties of the several officers, &c., shall remain in full force, though the same he .contrary to this Constitution,” &c. Nowit is, to say the least, a matter of debate, if this latter part applies to anything else than the duties, especially if taken in conjunction with article 129. Be that, however, as it may, the art. 144 says further, “and the several duties shall be performed by the respective officers of the State according to the existing laws, until the organisation of the government under the Constitution, and the entering into office of the new officers to be appointed under said government and no longer.” Thus the article itself limits the duration of the office to the appointment of the new officers, and consequently if a new officer be appointed legally, the old one must necessarily be ousted and his tenure end by the terms of the article itself. Now we have already shown that it was not obligatory on the Legislature to act on the proviso of the 50th article; and that it was not necessary for them to do so, because a law existed covering the ground. It is shown that that law can be put in force consistently with the Constitution, by limiting the tenure of office to- the term required by the Constitution ; and that by so doing the law is perfectly competent to perform all that a new law could do, and produce no inconvenience to the public service. Is the monstrous doctrine then to be tolerated, that a law is to be maintained in violation of the Constitution, when it can be adapted to and made to harmonise with it, and with no inconvenience to the public service; which is the only cause that article 144 admits or assigns as The reason for permitting the existence or continuance of a law to the contrary? “Cessante ratione, cessat ipsa lex.”
    
      It is pretended, however, that this doctrine has been established by this honorable court in the case of The Board of Currency v. The Managers of the Citizens’ Bank, reported in 3d Ann. 34C to 350. We take the liberty to deny that this court has established, or intended to countenance, such doctrine. Its opinion is incontestably true on the facts presented by that case; it did not lay down a general rule. This case presents a different state of facts, and the decision is wholly inapplicable. In that case it was contended that the Secretary and Treasurer of the State, who were constituted, ex officio, the Board of Currency by the act of the 6th of April, 1843, and were distinct offices, were incapacitated from acting by the X26th article of the Constitution, which provides “that no person shall hold or exercise at the same time more than one civil office of emolument,” &c.; and that the act of 1843 was abrogated by that article. Your honors most correctly held that it was one of the cases provided for by the art. 144, and not repealed, though contrary to the Constitution; and that the officers must continue to exercise the functions of the Board of Currency until the Legislature made a different provision. But why did this court decide that the Legislature must act? Simply because the law as it stood was the only law on the subject, and was so constructed that it could not be reconciled with the Constitution; it must therefore ever remain in conflict with the Constitution, until the Legislature shall furnish another. It was maintained, “not to inconvenience the public service.” This court did not in that case say, that when a law can be reconciled with the Constitution it must be maintained in a shape that is contrary to it, especially when the public service is not inconvenienced by it. Nor did the court say that when an existing law can be enforced conform-ably with the Constitution, that it is to be maintained in a shape inconsistent with it until the Legislature shall change it; and yet these are the doctrines that defendant’s counsel sought to infer from the decision in that case.
    We apprehend that this court will not tolerate another doctrine of the defendant’s counsel: that legislation was necessary to carry out all constitutional provisions. This may be true when the Constitution itself provides for it, or when it is necessary to carry out the principles of the organic law in a particular form, or apply them in cases where there is no existing legislative provision that is available. But it is cleai, that no legislative enactment can be of greater force than a constitutional provision itself, and when such a provision can be directly applied, as it is evident that art. 96 and many other articles of the Constitution can, legislative action becomes a work of supererogation, and a species of impertinence.
    Were this doctrine to prevail, your honors’ seats would be vacated, for they are held directly from the Constitution, without the intermediation of legislative action.
    It appears to us that art. 145 is entitled to some consideration, coming as it does so directly after art. 144. We believe it to be something more than a mere temporary provision, and that it applies not merely to the first appointments to be made, but to all. We presume that the office of notaiy, although not created by the Constitution, nor by any Legislature held under it, is nevertheless an office under the Constitution, and that the appointments intended by art. 145 are not confined to those created by that instrument itself; but extend to all such as existed by law, to.which a different mode of appointment was not attached. We therefore consider that we have established the propositions with which we started, and that since the defendant’s tenure of office had endured for more than four years, and the governor has by the advice and consent of the Senate the right to appoint to the notarial office, and that he did appoint the relator, who has been duly qualified, the case provided for by art. 144 has happened, in the terms of that article, by “the entering into office of the new officer,” and that the defendant can hold it “no longer.”
    
      H. A. Bullard also appeared for the relator.
    
      George W. Christy, for defendant,
    contended: The points involved in this case are few, and may be readily traced in the following grounds, upon which defendant relies in support of his refusal to deliver up the records of his office, to wit: 1st. That his commission of notary has not expired by limitation. 2d. That the executive has no power of removal in the case. 3d. That his office has not been vacated by resignation or death. 4th. That until the office has been vacated by limitation, removal, resignation, or death, no successor can be legally appointed.
    Under the Constitution of 1812, the executive derived his power to appoint notaries public from an act of the Legislature, passed March 20th, 1813, which provides “that there shall also be appointed as many notaries public as may be deemed necessary, who shall remain in office during good behavior, but may be suspended by the Supreme Court until the next meeting of the Legislature whenever, after summary enquiiy before said court, it shall appear that there exists just cause of reproach against their conduct.”
    From this we gather that, at the time of his appointment, defendant’s term of office was for good behavior; and that the power of removal lay with the Legislature. Has this act of 1813 been amended or changed by the adoption of the Constitution of 1845? In the course of this argument we shall endeavor to show that it has not; that with regard to the defendant, all of its provisions remain in full force and effect. Art. 144 of the Constitution of 1845 provides “that, in order that no inconvenience may result to the public service from the taking effect of this Constitution, no office shall be superseded thereby, but the laws of the State, relative to the duties of the several officers, executive, judicial and military, shall remain in full force, though the same be contrary to this Constitution ; and the several duties shall be performed by the respective officers of the State, accordingto the existing laws, until the organisation of the government under this Constitution, and the entering into office of the officers to be appointed under said government, and no longer.” Under this article defendant had an unquestionable right to continue in the discharge of the duties of his office until the fulfilment of the two contingencies provided for in the latter clause, to wit, the “organisation of the government,” and “the entering into office of the new officers to be appointed under said government.” Now, if it can be shown that the last contingency has not been fulfilled, for the reason that no officer has been legally appointed to supercede him, defendant’s right still to continue in the discharge of the duties of his office, we think, cannot be denied.
    Plaintiff contends, that defendant’s term of office has expired by virtue of the 96th article of the Constitution, which declares, that “the duration of all offices not fixed by this Constitution shall never exceed four years.” The office of notary being one confessedly not fixed by the Constitution, it results from the provision of said article, that defendant’s term of office expired by the limitation at the end of four years from the period of the organisation of the government; and that plaintiff’s appointment by the executive was legally made, by the act of 1813, which has been retained in full force by article 142 of the Constitution, so far as it may not be inconsistent with the provisions of said Constitution'.
    We cannot regard article 96 as other than directory in its character. It should be remembered that the practice under the Constitution of the United States, and under the Constitutions of the several States, has been to leave it to the Legislature to enact laws to carry the principles adopted in the Constitution into operation. To assume that a Constitution is to be construed to carry into action the provisions it contains, without the aid of special enactments by the legislative body, is out of the usual examples. In this consideration of the character of .the article we are further strengthened by a reference to the histoiy of its adoption in convention. As originally adopted it reads thus: “The Legislature shall detexmine the duration of the several public officers, when such duration shall not have been fixed by this Constitution; provided that such time shall never exceed four years,” &c. Debates of Convention, p. 831. Thus making it obligatory on the Legislature to designate the terms of all offices not fixed by the Constitution; and by reference to the article 50, we find “that the Legislature shall have a right to prescribe the mode of appointment to all other offices established by law.” The two articles refer to the same subject matter, and may well be taken together, ns indicating that the Legislature alone had the entire control of the whole subject.
    If the 96th article, then, be directory in its character, and simply intended as a restriction on legislative action, in the absence of all legislative action in the matter, no vacancy has occurred by limitation, and the defendant is constitutionally in the enjoyment of his office.
    But grant, for the sake of argument, that the article 96 is positive and legislative in its character, and let us adopt the reasoning of the district judge.
    The act of March 20, 1813, was revived by article 142 of the Constitution, which provides, that “all laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if the same had not been adopted;” but, continues the learned judge, that portion of the act which declares that the office of notary shall continue during good behavior, being inconsistent with the 96th article, was not revived with the other portions of the act; and consequently, there being no provision remaining relative to the duration of office, the 9Gth article must prevail; and the defendant’s commission expires by limitation.
    How does this view comport with the language of the Supreme Court, and the positive provisions of article 144? In the case of The Board, of Currency v. Managers of Citizens’ Barde, 3d Ann. 350, the court held, that the act of April 6th, 1843, whicli constituted the Secretary of State and State Treasurer to be a Board of Currency, was not repealed by the Constitution of 1845, but that the same remained in full force and effect, until legislative action should be had, though in some respects conflicting with article 126, which provides, “that no person shall hold or exersise at the same time more than one civil office of emolument,” &c. This decision was predicated upon article 144, which directly provides that “the laws of the State relative to the duties of the several officers, executive, judicial and military, shall remain in full force, though the same be contrary to the Constitution.”
    The articles 142 and 144 are not irreconcilable. The language of article 142 is general in its character. The article 144, which follows it and is to be regarded as the last and most binding expression of popular will, is more special, and connecting its exceptions with the general language of article 142 we might regard that article as reading thus: “AH laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if the same had not been adopted; but the laws of the State relative to the several officers, executive, judicial and military, shall remain in full force, though the same be contrary to this Constitution.” In this view, the two articles are not inconsistent and may well stand together. If so, even though the article 96 be legislative in its character, yet the saving clause of article 144, in favor of the officers of State, revives the whole of the act of March 20, 1813, and makes it part and par'cel of the Constitution itself, until legislative action shall have been had upon the subject; and this, in the face of its apparent conflict with article 96.
    Such is the purport of the decision in the case of the Board of Currency above alluded to, and such we apprehend to be the true construction If the act of 1813 be retained in full force, it retains defendant in the term of his office until legislative action, and no vacancy has occurred by limitation.
    It is not pretended that defendant has resigned, nor is it seriously contended that the executive has the power of removing him. If no vacancy has occurred either by limitation, resignation or removal, how can it fora moment be seriously contended that the last contingency of article 144, to wit, “the entering into office of the new officers to be appointed under said government,” has ever arisen, since the first requisite to appointments to office is a vacancy in the office itself; which we have shown has not yet taken place in the present instance. Unlil new officers are legally appointed, the old notaries are at full liberty to continue in the discharge of the duties of their offices; nor can such appointments be made until the Legislature, exercising the powers granted to them by the 50th article of the Constitution, shall have determined the duration of offices, repealed the act of 1813, and declared the mode in which the appointments shall be made.
    
      C. Roselius, also for the defendant,
    contended: This application for a writ of mandamus is made on the ground that the relator is the successor in the office of notary public of the defendant, and as such entitled to the records of that office. The defendant expressly denies that the relator is his successor in office, and pleads, specially, that the commission under which Baudouin claims the office is null and void, because not warranted by the constitution and laws of the State:
    The defendant was appointed by the governor, with the advice and consent of the Senate, on the 5th February, 1839, under the law of 1813. (See Session Acts of that year, p. 136.) That law provides that the governor shall appoint, with the advice and .consent of the Senate, for the parish and city of New Orleans, “ as many notaries public as may be deemed necessary, who shall remain in office during good behavior, but may be suspended by the Supreme Court until the next meeting of the Legislature, whenever, after a summary inquiry before said court, it shall appear that thefe exists just cause of reproach against their conduct.”
    
      Baudouin’s commission is dated on the 14th IMarch, 1850, and expressly states, that he is appointed in the place of Felix Percy, whose term of office has expired. The only question, therefore, submitted to the decision of the court is, whether the governor had the constitutional or legal power to make the appointment in question?
    In order to solve this question, it will be necessaiy to examine what is the extent of the appointing powor of the governor, in relation to the office of notary public? No other appointing power is delegated in express terms to the executive by the Constitution, except that which is specified in the 50th and 51st articles of that instrument, the terms of which are clear and explicit: “ He shall nominate and by and with the advice of the Senate appoint all officers whose offices are established by this Constitution, and whose appointment is not otherwise provided for. Provided, however, that, the Legislature shall have a right to prescribe the mode of appointment to all other offices established by law. Tho governor shall have power to fill vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session, unless otherwise provided for in this Constitution; but no person who has been nominated for an office, and rejected by the Senate, shall be appointed to the same office during the recess of the Senate.”
    Now the office of notary public is not established by, nor even mentioned in, the Constitution. Hence, it is clear that the power to appoint to that, office is not vested in the governor by the Constitution. From whnt source then does the executive derive this power? There has been no legislation on the subject of notaries public since the adoption of the present Constitution.
    It is evident, therefore, that if the appointing power, so far as the office of notary public is concerned, is vested in the governor at all, it must be by the act of 1813, already quoted. Under that law, the office is held during good behavior ; and it follows as a necessary consequence that the governor cannot create a vacancy by making a new appointment. The power to remove is not incidental to the appointing power, under the Constitution of Louisiana. Nor does the executive, in the present instance, assume the power to remove; he places his right to appoint Bavdouin, expressly on the ground that Percy’s term of office has expired. It has already been seen that by the law of 1813, under which Percy was appointed, and in virtue of which alone the governor can appoint notaries public, the term of office is not limited by any specific period of time. It follows, therefore, that unless it can be shown that the law has been amended or modified by the Constitution, it is not true that Percy’s term of office has expired ; and it is equally evident that the governor has no constitutional power to appoint Baudouin in his place. The inquiry, then, presents itself whether the act of 1813 has been amended or modified by any clause in the Constitution ?
    By the 144th article of the Constitution, it is provided that: “In order that no inconvenience may result to the public service from the taking effect of this Constitution, no office shall be superseded thereby, but the laws of the State relative to the duties of the several officers, executive, judicial and military, shall retnain in full force, though the same be contrary to the Constitution; and the several duties shall be performed by the respective officers of the State, according to the existing laws, until the organisation of the government under this Constitution, and the entering into office of the new officers, to be appointed under said government and no longer.”
    It can certainly not be contended that this provision in the Constitution gives the least countenance to the idea that the act of 1813 has been amended so far as relates to the term of office of notaries public. On the contrary, all the existing laws concerning public officers and their functions are maintained in full force and virtue, notwithstanding their repugnancy to the Constitution. The learned counsel for the relator insists that the Constitution is the supreme law' of the State, of paramount authority; and that its enactments must prevail overall ordinary legislation; and he triumphantly refers to the 142d article, which provides: “ All laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if the same had not been adopted ” Hence it is argued that inasmuch as the 96th article of the. Constitution provides that: “The duration of all offices not fixed by this Constitution shall never exceed four years.” It is plain that the act of 1813, by which notaries public hold their office during good behavior, is inconsistent with the Constitution; and consequently was not kept in force. But it is manifest that this argument proves too much; for if it should be conceded that the law of 1813 is no longer in force, whence does the governor derive his appointing power ?
    In order to avoid this fatal but inevitable conclusion, the ingenious counsel for the relator, and with him the learned judge of tho district court, attempt to mince the matter by assuming that although the act of 1813 was not altogether abrogated by the 142d article of the Constitution, yet it was amended as to the term of the office of notaries public, by the 96th article. The fallacy of this argument is obvious. It was not, and could not be the intention of the framers of the Constitution to amend the existing law's of-the State; they had not been called together in convention for any such purpose; the high trust confided to them was to amend, revise, or remodel the fundamental law of the State. To pretend that they were occupied in amending the law of 1813, or any other law, is paying them but a left-handed compliment.
    But it is said that the 96th article of the Constitution limits the duration of the office of notary public to four years, and therefore it cannot be held for a longer term under the Constitution. This is begging the question. The Constitution does not contain the limitation of the term of office here assumed. Does the language used in the Constitution, that the duration of all offices not fixed by this Constitution shall never exceed four years, mean that the term of all those offices shall be four years 1 If such was the intention of the framers of the Constitution, they adopted rather singular language to express that intention; for according lo the ordinary and universally received acceptation of the words employed, the term of these offices may vary from one day to four years. A limitation of the terms of offices referred to was contemplated by the framers of the Constitution, but that limitation was not given in the Constitution itself; except with regard to the maximum duration. It is clear, therefore, that the intention of the framers of the Constitution could not be that the 96th article should be amendatory of the act of 1813. That article contains a restriction on the legislative department of the government with regard to the duration of the terms of offices. The duty is imposed on the Legislature to limit the terms of offices according to their wisdom and discretion; provided those terms do not exceed four years. But can it be pretended, with the least color of reason, that this limitation or restriction of the legislative power in the Constitution of 1845, has a retroactive effect, and refers back to the General Assembly which passed the act of 1813? Yet such is the argument of the counsel for the relator, and on that ground the judge of the district court has placed his decision. Nay, the learned judge goes a step further, and actually decides that the law of 1813 is a part and parcel of the Constitution. If this view be correct, then the immense bulk of laws with which the State was blessed in May, 1845, has all become a part and parcel of the Constitution, at least so far as not inconsistent with it. Whatever may be the perfection of the organic law of this State in other respects, it is unquestionably the most voluminous instrument of that kind that was ever-known. And how can this mass of legislation which has thus become a part and parcel of the Constitution, be repealed, amended or modified? An argument leading to such results cannot be a sound one.
    That the article 96 of the Constitution was intended as a restriction of the power of the Legislature in limiting the terms of offices, appears clearly from the debates on the article in the Convention. By reference to page 829 of the debates, it will be seen that the original form in which the article 96 was presented, was as follows: “ The Legislature shall determine the duration of the several public offices, when such duration shall not have been fixed by this Constitution ; provided that such time shall never exceed four years; except notaries public, whose term of office may be extended to seven years,” &c. The section, as thus proposed, gave rise to considerable discussion. “ Mr. Wadsworth thought the whole provision useless. It would create confusion. It would be much better to leave the whole matter discretionary with the Legislature.” “Mr. Eustis said he was one of those who thought that public officers were, and ought to be responsible to the people for the power delegated to them. But there were officers whose functions required qualifications so difficult to be met with, that prudence necessitated that they should be exceptions to what ought to be considered the general rule. Among this class of exceptions he would place notaries public. A good notai-y is more difficult to be found than a good lawyer. A dozen may be appointed; you may fill the office; you may appoint a notary ; but you cannot make a notary. The notary is necessarily the architect of his own fortunes. His business depends upon his skill and his reputation. It is to his hands that are confided the most important papers and the most important matters appertaining to society. From him are expected fidelity, order, discretion, punctuality, and an intimate knowledge of the titles of the country; and can we reasonably hope to meet with all these qualifications whenever we please ? It may be that you can get a ready copyist; but is a ready copyist alone suited to the delicate and important duties of a notary ? Will a good hand-writing and ordinary business habits be sufficient ? How much harm can be done by an unskilful person, who is charged with the functions of a notary, if he be entrusted with the public business ? The functions of the notary are directly connected with the safety of property, and the proper fulfilment of contracts. I would appeal to tlie honorable and learned gentleman, (Mr. Lewis,) whether it would not be most unfortunate to expose property and the interests of families to constant peril, by impairing and destroying all the guaranties of having proper persons to fill the office of notary, and by making the tenure of the office uncertain, to create constant fluctuations in it, which would doubtless be attended with pernicious consequences.”
    After many amendments had been proposed, some of which were adopted and others rejected, the section was finally adopted by a vote of 36 to Í3, as follows : “ The Legislature shall determine the duration of the several public offices, where such duration shall not have been fixed by this Constitution ; provided, that such time shall never exceed four years; and all the civil officers, except the Governor and Judges of the Supreme and District Courts, shall be removable by an address of a majority of the members of both houses, except those the removal of whom has been otherwise provided for by this Constitution.”
    There was no re-consideration of this section as thus adopted. How it obtained the laconic form in which we find it in the Constitution, can only be explained by supposing that the committee of revision, for the sake of brevity, changed the somewhat diffuse phraseology in which it was originally couched. But that committee had no authority; nor can it be believed that they had the intention of changing the substance of the article in any material respect.
    I repeat, therefore, that it is too clear for argument, that the rule laid down in the 96th article of the Constitution is addressed to the Legislature, and is restrictive of its discretion; and that it is one of those constitutional provisions which can have no effect, until an attempt is made by the Legislature to transcend the restriction by determining the duration of the term of any office, not fixed by the Constitution, beyond the period of four years. It is precisely of the same character as that clause in the Constitution which inhibits the Legislature from creating corporations with banking privileges, or from granting monopolies for more than twenty years; or that prohibiting one person from holding two offices, áse.
    This court has virtually decided the question which we are now discussing, in the case of the “ Board of Currency v. The Managers of the Citizens' Bank," 3d Ann. 346. In that case, as in the present, it Was contended that the existing law organising the Board of Currency had been amended by the 126th article of the Constitution. Such was the first impression of the court; but upon a re-hearing, the court decided that under at tide 144, the laws relative to the Board of Currency remained in force and unchanged, notwithstanding its repugnancy to the Constitution. It cannot be argued that there is any difference between that case and the present, for the Secretary of State and Treasurer of the State had both been appointed under the present Constitution.
    
      John R. Grymes appeared on the same side.
   The judgment of the court was pronounced by

Eustis, C. J.

The relator Baudoin was appointed by the governor, with the advice and consent of the Senate, a notary public in and for the parish and city of New Orleans, “in the place of Felix Percy, whose term of office has expired.” He took the oath of office and demanded of Percy the delivery of the records belonging to the office. On his refusal to deliver them, Baudoin applied to the Court of the Fifth District of New Orleans for a mandamus to enforce their delivery to him as the successor of Percy in office; which was granted, nisi. On the answer of Percy the cause was tried, and a peremptory mandamus was awarded. From the decree of the district court awarding the mandamus the defendant has appealed. No motion has been made to dismiss the appeal; and both parties assume that the matter in dispute is within the appellate jurisdiction of this court.

The defendant was commissioned as a notary public in 1839. The commission of the relator bears date the 14th of March, 1850.

The main propositions in favor of the right of the defendant to hold the office, which we deduce from the arguments of eounsel, are : 1st, that his commission of 1839 has not expired, but is still in force; 2d, that the appointment of the relator is unauthorised by the Constitution and laws, and consequently void.

The first question to be determined is, whether the duration of the office was limited by a term. The provision of the Constitution of 1812 and its operation are too well known to the profession to require anything, more than a general reference to it, in order to authorise the statement made by the counsel for the relator, that a large portion of the executive offices were not affected either as to the duties required to be performed, or the mode of appointment by the Constitution of 1845.

The Constitution of 1812 provided the mode of appointment for offices established by it, defining to the Legislature the right of prescribing the mode of appointment of all other offices to be established by law. Art. 3, § 9.

By the act of 1813, made to carry out this constitutional provision, it was provided, that the governor shall appoint, with the advice and consent of the Senate, as many notaries public as may be deemed necessary, who shall remain in office during good behavior, &c. Under this act the defendant was appointed and held his office. Several of the offices established by law under the Constitution of 1812 were limited in their duration, but that of notary and some others remained without any limitation.

This being the state of things when the Constitution of 1845 was adopted, we have to ascertain its effect upon this previous legislation and the offices existing by virtue of it. The mode of appointment was not changed in relation to them; for the fiftieth article leaves the power where the Constitution of 1812 had placed it — in the Legislature: “The governor shall nominate, and by and with the consent of the Senate, shall appoint all officers whose offices are established by this Constitution, and whose appointment is not therein otherwise provided for: provided, however, the Legislature shall have a right to prescribe the mode of appointment to all other offices established by law.” There were offices established by law, upon which the Convention acted, and are recognised expressly in the Constitution, for which the legislature had a right to prescribe the mode of appointment. But the Legislature was not called upon to exercise this right; the power had been exercised; the offices were created; and the fiftieth article is a simple delegation of power. The phraseology of the corresponding article of the Constitution of 1812 has this marked difference. The words in this instrument are “other offices to be established by law.” The fiftieth article of the N ew Constitution treats of “other offices established bylaw;” meaning those already established as well as those to be hereafter established. The reason of the discrepancy • is obvious. The Constitution of 1812 provided for the organisation of a State Government, which was to succeed the former Territorial Government established under the authority of the United States; that of 1845 merely for a change in some important particulars of a subsisting State Government, but leaving portions of it untouched. Great changes were made by the Constitution of 1845 in the judicial power, in the Legislative power, in the elective franchise, and some other matters; but the changes in the executive branch of the government were comparatively few.

The article 142 is in the same sense when it provides, that the laws in force at the time of the adoption of this Constitution and not inconsistent therewith shall continue as if the same had not been adopted.

The article 96 provides, that the duration of all offices not fixed by this Constitution shall never exceed four years. This article takes effect proprio vigore; it precludes by its terms the necessity for any legislation to give it force. The application of this limitation to offices held under former laws, continued in force by the Constitution, appears to us to be obvious and necessary. To except them would defeat, we think, the plain and evident purpose of the Constitution itself. The laws in force were to continue; the offices were not superseded; the incumbents were not changed. We find no clause in the Constitution which pre-supposes the necessity for any legislation on this subject. On the contrary, we infer from its whole tenor, that the operation of the Constitution itself necessarily carries into effect what was considered by the Convention as an important change in our system: the limitation of the term of office by the Constitution itself.

We therefore consider that the term of office of notary public held by the defendant was limited by the Constitution to four years from the time of the taking effect of said Constitution; and that the relator has been duly appointed his successor in office.

The judgment of the district court is therefore affirmed, with costs.  