Same Case

The plaintiffs’ counsel has favored us with a printed petition for a re-hearing ; and as I had not the opportunity of detailing the reasons which induced me to concur in the opinion of the majority of the court when it was read, I am grateful for that which he has given me, of doing so, principally as he informs us, that the position taken by the dissenting Judge, was spontaneously pronounced to be unanswerable, by the whole bar, with the exception of the counsel for the appellants.

The petitioners state, that they were duly appointed by the Governor, with the advice and consent of the Senate, Port Wardens of New Orleans ; that the tenure of their said offices is during good behavior; and that they cannot be deprived of them, except in the mode prescribed by the Constitution and laws ;— that the defendants, have lately set up a claim to the offices, and pretend to have been appointed to supersede the petitioners under an appointment of the Governor, which is a mere arbitrary assumption of power, in violation of the Constitution and laws, and the vested rights of the petitioners.

On this statement they obtained an injunction, commanding the defendants to refrain from acting in the said offices, until the further order of the court. The petitioner concludes by a prayer, that the defendants, may be decreed not to be Port Wardens of New Orleans ; that their commissions may be declared nullities, and the injunction perpetuated; and that they may be condemned to pay damages.

The defendant, Thompson, pleaded the general issue, and averred himself to have been duly appointed ajPort Warden, and denied, that the petitioners had any cause of action, or any right to the remedy sought.

The petitioners had judgment, the injunction was perpetuated, and the defendant Thompson appealed. The sole question which the case presents, relates to the continuance of the power of the Governor, after the admission of the State into the Union, to appoint “ as often as may be necessary,” a Master and three junior Wardens for the port of New Orleans, under an act of the Legislative Council of the Territory of Orleans, of the year 1805.

*400It is urged, that since the formation of the State government, the Governor can no longer appoint the Port Warden, whenever it is necessary, but only when there is a vacancy ; because, except in the latter instance, the appointment is the removal of an incumbent, which is not within the Constitutional attributions of the Executive ; the Constitution having provided no other mode of removal of a civil officer, except by impeachment, and, in case of other civil officers than the Governor, and Clerks of courts, by^ an address of a given number of members of both houses, of the Legislature to the Governor.

This argument assumes, that when a power is within the Constitutional attributions of one of the branches of government, it cannot be exercised, when an indirect consequence of its use is one of those, which that branch of government could not have directly produced ; and it is said, that although the Governor may appoint a Port Warden, whenever it is necessary, he cannot do so when an indirect consequence of the appointment is the re moval of an incumbent, which the Constitution does not permit the Governor directly to effect. It is not pretended, that either the Legislature of the United States, or of this Stale, can directly remove a Judge, otherwise than by the combined action of the Senate, and House of Representatives, id est, by impeachment by one, and judgment by the other; yet in the year 1802, the Legislature of the Union, exercising one of its Constitutional attributions, id est, the repeal of a law of a preceding Legislature, did not think itself prevented from exercising that power, although an indirect consequence of the repeal was the removal of all the incumbents of the judicial offices, which had been created by the law thus repealed.

About the year 1820, the Criminal Court of the First Judicial District of this Slate, was composed of three Judges, who were permitted to practice the law. This permission was thought improper, but it could not be withdrawn, without increasing the salary of the Judges, or reducing the number to one, and giving him the salary of the three.

The last alternative could have been easily obtained by an address of three-fourths of the Legislature, to the Governor, representing the utility of it; but it was thought best to repeal the law *401which had established a court composed of three Judges, and to establish another composed of one. Thus, the two junior Judges, who could not have been removed by the direct action of the Legislature, were by the repeal of the law, which was within the Constitutional attributions of that body, indirectly removed.

When that court was directed to hold sessions twice a year, in the country parishes, of the First Judicial District, it was authorized to appoint an Interpreter in each parish ; it was however soon ascertained, that the service could be better performed by the Interpreter, of New Orleans, and it was not deemed necessary, that the two houses should address the Governor, for the removal of the country Interpreter. This was done by a law which repealed the preceding under which those Interpreters had been appointed, and they were thus removed. In the year 1825, by the act establishing the City Court of New Orleans, all acts creating Justices of the Peace, and Constables within the City of New Orleans, its faubourgs, banlieus &c., were repealed ; thus all those officers were removed without any impeachment, or address to the Governor. The repeal of the laws creating them, was within the constitutional attributions of a bare majority of the Legislature, with the assent of the Governor; and although the circumstance, that the repeal of the acts had, as one of its necessary consequences, the removal of those Justices of the Peace and Constables, who as the counsel for the plaintiffs, contends were removable only by the Governor, on the address of a given number of the members of both houses, it never was doubted, that the repeal was constitutional.

Here we have instances of Circuit Judges of the United States, holding their offices during good behavior, removed from office by an act of Congress. Judges of this State, Justices of the Peace, Constables, and Interpreters, removed by the repeal of the law which had created them ; although it is clear, a direct removal of any of them could not have taken place, without an address from a given number of members of the Legislature to the Governor.

It is admitted, that the Port Wardens are among the officers whom the Constitution has declared to be removable by such an address; yet, if a new choice be within the constitutional attri*402butions of the Governor, it must follow, that the removal of the former incumbent as legitimately follows from that choice, as that of the officers above mentioned, from the repeal of the laws creating them. But the counsel for the petitioners has contended, that the Constitution, having withheld from the Governor the power of removing the incumbent, he holds his office during his good behavior, and as the Judges, Clerks of courts, and Notaries Public, can only be removed by an impeachment, or the address of both houses, or at least, that he has a life estate in his office.

The Supreme Court of the United States has lately decided in the case, Ex parte Hennen, 13 Peters’ Reports, 259, that in the Government of the Union, no office is held during good behavior, except those, the tenure of which has thus been fixed b}*- the Constitution ; and that the offices of those who were appointed for an unlimited period, are not held during life, but are determined by a new choice made by the appointing power.

The counsel for the petitioners has strenuously urged, that the clause in the Constitution of this State which renders all civil officers, except the Governor, and Clerks of courts, removable on the address of the Legislature, prevents the applicability of that decision to the present case. It is, therefore, proper to review the part of the Constitution he invokes. One of the learned counsel for the petitioners, has informed us, that he believes, that the provision is peculiar to the Constitution of this State ; that he has carefully examined those of the other members of this Union, without finding any thing like it. I believe it may be traced to the legislation of Great Britain. In that country the commissions of the Judges were durante bene plácito nostro, originally, and continued so until the thirteenth year of William the Third, when'it was imagined, that their devotion to their country would be better secured by rendering them less dependent on the Crown, and more so on Parliament. Accordingly, by the 23d chapter of the acts of that year, it was provided, that their commissions should be quamdiu bene se gesserint, and that it might be lawful to remove them on the application of both houses of Parliament.

Notwithstanding this, it was held, that their offices were deter*403mined on the demise of the King; and in the first year of George the Third, further to secure their independence, it was enacted, on the recommendation of the King, that the demise should no longer have that effect; and the statute has a clause continuing the right of Parliament to address the King for the removal of a Judge.

The framers of our Constitution thought it proper to modify the tenure of good behavior as it still exists in the United States; and established that, which was to prevail in Louisiana, on the footing of the British. They farther thought, that none should exercise any office whatsoever, if he rendered himself obnoxious to a great proportion of both houses of the Legislature. With a view absolutely to confirm the power of direct removal of officers in the same hands, and to prevent officers appointed for an unlimited period from being removed by a new choice of the appointing power, they directed the Legislature to fix the duration of the offices created for an unlimited period. Their object was evidently, to put an end to all tenures of office other than those of good behavior, or for a limited time; from which it is not a forced inference to conclude, that until the Legislature carried the views of the Convention into effect, those offices to which the Governor was by law authorized to appoint whenever he thought it necessary, should not be interfered with. They considered the inconvenience of so little importance, that the application of the remedy might be left to the Legislature. It does not appear to have paid any attention to the constitutional injunction, at least in regard to Port Wardens. The territorial law which first called them into existence, has until now been considered as being still in force, with the modification, that the advice and consent of the Senate are necessary to their appointment, and that the period for which they are to serve is to be fixed by the Legislature. Until then, their tenure is neither good behavior nor for life, but until the Governor, deeming it necessary, makes an appointment. The injunction would have been more effectual, if it had extended, to offices thereafter created. The Legislature, however, thought proper to create offices, to be exercised during an unlimited period; Inspectors of flour, to-b acco, and Interpreters of courts are among the number; and, in *404one instance at least, a Judge, that of the Criminal Court of New Orleans, thought, as the present executive of the State, that the power which the law had. given him to appoint an Interpreter to his court, without any limitation as to time of service, included that of making a new choice, toties quoties, it appeared to him necessary, and the power was exercised in the year-. No impropriety was then attributed to this act. Indeed, the removal of the incumbent by the Judge, did not impugn the right of the Governor to remove the Interpreter on the address of both houses. The magistrate who then filled the bench of that court, was a person of great legal acquirements, Judge Turner. Admitting that it is not too late to say, that these repeals, and that appointment were unconstitutional acts, it is certainly too late to say, that they were clearly so, and that their constitutionality cannot be contended for. The counsel for the plaintiffs calls upon us to say, that the Governor’s appointment of the defendant, Thompson, as a Port Warden, was an arbitrary assumption of power, in violation of the'Constitution. The Judges of this court have always considered themselves as the guardians of the constitutional rights of the people, and as such, authorized to pronounce on the constitutionality of the acts of the two other departments of government; but we cannot say, that any act of iheirs is unconstitutional unless it be manifestly so, and the question is not susceptible of doubt. Syndics of Brooks v. Weyman, 3 Mart. 12. In the case of Johnson v. Duncan et al., Syndics, Id. 553, we held, that it is only in cases where the incompatibility of the law with the Constitution is evident, that courts will go the length of declaring null an act which emanates from legislative authority. In Fletcher v. Peck, 6 Cranch, 87, Chief Justice Marshall, says ; “ the question whether a law be void for its repugnancy to the Constitution, is at all times, a question of much delicacy, which ought seldom if ever to be decided in the affirmative in a doubtful case.

—It is not on slight implication, and vague conjecture, that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law, should be such, that the Judge feels a clear, and strong conviction of their incompatibility with each other.”

*405There can not be any doubt, that this court is bound to test the constitutionality of the acts of the second branch of the Government of the State, when called upon by a suitor. But it is our duty, and it will always be our inclination, to examine such acts with that attention, caution, and respect, which we use in the examination of the acts of the first branch. Either of those branches is the proper Interpreter of the Constitution, in- every case in which it acts within its legitimate sphere ; and its interpretation will be entitled to the respect of both the others. The discrepancy from the Constitution, if doubtful, will not be pronounced by the third branch. The Governor was within his constitutional attributions, when he acted on the question whether the appointment of a Port Warden was necessary. It was his duty to consult the Constitution, and to determine whether it opposed any obstacle to the exercise of his power.

The Senate, on the nomination of the defendants, were bound to inquire into its constitutionality before they sanctioned it with their advice and consent, which are the best evidence we can’ have, that, in their opinion, it was constitutional.

The best attention which I have been able to give to the arguments offered for a re-hearing, have not convinced me, that.we err in sustaining the pretensions of the defendant, Thompson; much less, that his appointment was a violation of the Constitution.

I regret, that in his printed petition, the counsel for the plaintiffs has forgotten himself so far as to indulge in animadversions on the motives and conduct of the Executive, which nothing in the record justifies.

I am of opinion, that no re-hearing shou’d be granted, and I am commanded by the court to say, that it is refused.