text:
    No. 8511.
    Succession of T. W. Colwell.
    Children conceived by persons who at the time were prohibited from contracting marriage on account of disparity of race, may, after being duly acknowledged, be legitimated and given the right of heirs, by the marriage of their authors, celebrated after the impediment has been removed by law.
    A marriage contracted in a Parish different from that of the domicil of the parties, and solemnized by the proper authority there, is not forbidden by law, and will produce all the effects of a legal marriage.
    APPEAL from the Twenty-third Judicial District Court, Parish of West Eaton Rouge. Gole, J.

      Bead & Goodale, for Appellants :
    1. Acknowledgments shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception. O. 0. 304.
    2. Acknowledgment is a preliminary and necessary act, when legitimation of children is attempted.
    3. When the law gives a statics upon the condition of marriage, it means such marriage as it itself prescribes. 4 A. 375 ¡ 12 A. 367.

      Gha$. 8. Mice, for the Opponents:
    1. The repeal of Art. 95, and the amendment of Art. 221 of the Civil Code of 1825, by omitting in the Revised Code of 1870, the clause invariably requiring written evidence of the acknowledgment of children of color, together with Art. 198 of the Revised Code, give to children of color, whatever their descent, the same rights as to acknowledgment, and to legitimation by marriage of their parents, as are enjoyed by children of wholly white parentage. Succ. of Hebert, 32 An. 1104,1107.
    2. The true rule of construction is to consider all parts of the law, and all laws on the same subject matter, so as to interpret the whole, and to destroy none. Bowers vs. Hale, 14 An. 421; U S. vs. Hawkin’s heirs, 4 H. S. 322; Martinez vs. Layton, 6 H. S. 380; Bishop on Stat. Crimes, Sec. 126.
    3. The Legislature had a right by prior legislation, to provide for and regulate the force of subsequent acts, so as to control the effects of general repealing acts then in contemplation. Hence, the Acts Hos. 50 and 68 of the Session of 1870, are valid and existing laws, notwithstanding the general repealing Section 3690 of the Revised Statutes. Bish. on Stat. Crimes, Sec. 179, and cases cited in brief
    4. The parts of Sec. 2173 of the Rev. Stat. of 1870, are not irreconcilable ,* but are capable of being construed so as to give effect to the whole, and to carry out the evident intention of the law maker. Bishop on Stat. Crimes, Sec. 65.
    5. Section 2173 of the Revised Statutes, and the Act Ho. 68 of 1870, are not contrary to or in conflict with the Articles of the Civil Code on the same subject matter; but all should he construed together, and effect given according to the evident intention of the law maker.
    6. The second Article of the Constitution of 1868, declaring that all persons, without regard to race, color, or previous condition, horn or naturalized in the United States, and subject to the jurisdiction thereof, shall enjoy the same civil, political and public rights and. privileges, is repugnant to any inhibition, if any is made, by Art. 204 of the Code, to acknowledgments in favor of illegitimate children, when such inhibition is based solely on the incapability of the parents at the time of the children’s conception, to marry on account of color.
    7. Such an inhibition, if it be one, is in flagrant violation of the Fourteenth Amendment to the Constitution of the United States and the Civil Rights Bill, and to bhe extent of such inhibition is null and void.

      8. Tlie effect of constitutional and statute legislation has placed, as to their civil rights, persons of color in the same position, in all respects, as if they wore white. Sue. of Hebert; In re Ah Bong, 3 Saw. 157; Ex pewte Virginia, 100 TX. S. 367; Stander vs West Virginia, 100 U. S 305, 308; The Slaughter House Cases, 16 "Wall. 81; Wade on Retroactive Law, Sec. 15.
    9. The marriage, the recognition and legitimation relied on by the opponents, were permitted and authorized by the law of the time when done, and are productive of complete legal results. Holmes vs. Holmes, 6 La. 470 « Succession of Pearce, 30 .An. 1169 ; Act Ho. 68 of 1870; Sec 2173 Rev. Stats, of 1870; Arts. Rev. C. C.; Art. 2, Const, of La. of 1878; 14th Amend. Const. IX. S. and Civil Rights Bill.
   Tlie opinion of the Court was delivered by

Bermudez, C. J.

This is a contest for the Succession of T. W. Colwell.

The application of the two legitimate sisters of the deceased to bo recognized as his nearest of kin, and, as snoli, put in possession of his estate, is opposed by certam children of his, who claim to be his forced and only heirs.

From a judgment against them, the sisters have appealed.

Tlie facts are, that the children who claim, to the exclusion of tlie sisters, are the issue of Colwell, who was a white man, with Delia MoCalop, who was a colored woman. They were conceived and born at periods when their authors were prohibited, on account of disparity of races, from contracting a legal marriage.

In August, 1878, the parties, who were domiciled in West Baton Rouge, wont to the Parish of St. Charles, where they entered into a marriage contract, in due form of law, wherein, naming their seven children, they acknowledged them to be tlieir own legitimate children.” They afterwards contracted marriage. Colwell subsequently died, (5th March, 1881,) leaving property valued at upwards of $(>0,000, and which is tlie cause of the contention in this controversy.

The question to be determined is simply, whether the marriage of T. W. Colwell and of Delia McCalop has legitimated those children.

It is a novel and important question, which has commanded our special attention, and which we feel satisfied to have solved in a •manner justified by law and consonant with the dictates of equity and of humanity.

It is clear that if, at the celebration of the marriage, Article 95 of the Civil Code of 1825 had preserved its original force, the question would be summarily solved in the negative, 10 A. 411; 11 A. 59; 15 A. 342 ; 30 Gratt. 858, as the marriage would have taken place in the very teeth of a local prohibitory law, and so would have been absolutely null. Federal legislation would be incompetent to control in such matters. 1 Woods, 537; 3 Heisk. 287 ; 36 Ind. 389; 42 Ala. 525; 53 Ala. 150; 48 Ala. 195; 58 Ala. 190; Wade on Retroactive Law, §155; 18 Hou. 591; 3 Tex. A. App. 273.

The fact that the Article was expunged from the Revised Code of 1870, is highly significant and telling. It had in consequence ceased to have any vitality at the date of the marriage of Colwell, because repealed. In consequence of that repeal, the marriage could be and was legally contracted. 33 A. 1107. We do not consider that the correctness of this proposition is disputed by the litigants.

Their differences refer to the effects of the marriage. In other words, the litigants agitate the question, whether such a marriage could have produced such an effect as it would have occasioned if the parties could have contracted marriage at the conception of the children, born from their connections.

The character of those effects must be determined by an application of the laws in force at the date of the acknowledgment and of the marriage.

First of all those laws, was Article 2 of the Constitution of 1868, which declared, that all persons, without regard to race or color, or previous condition, shall enjoy the same civil, political and public rights and privileges, and be subject to the same pains and penalties.”

The laws themselves are: Article 198 of the R. C. C., which reads: Children born out of marriage, except those who are born from an incestuous or adulterous connection, may be legitimated by the subsequent marriage of their father and mother, whenever the latter have legally acknowledged them for their children, either before their marriage, by an act passed before a Notary and two witnesses, or by their contract of marriage.”

Article 19!): Children legitimated by a subsequent marriage, have the same rights as if they were born during the marriage.”

Art. 204, on the subject of acknowledgment of illegitimate children, provides: “Such acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of their conception.” This Article replaces Article 222 of the Code of 1825, which reads: “ Such acknowledgment shall not be made in favor of the children produced by an incestuous, or adulterous connection.”

Article 200; “A natural father, or mother, shall have the power to legitimate his or her natural children, by an act passed before a Notary and two witnesses, declaring that it is the intention of the parent making the declaration, to legitimate such child or children. But, only those natural children can be legitimated who are the offspring of parents, who, at the time of conception, could have contracted marriage.” Section 2173 of the Revised Statutes of 1870, which amends the fourth Partidas, as revived by the Act of 1831, p. 86, by changing the word “ enable ” into “prevent," the amended portion now reading as follows:

“ Nothing herein contained shall be so construed as to prevent a white parent from legitimating a colored child,” etc., “ provided the natural children are the issue of parents who might, at the time of conception, have contracted marriage,” etc.

Act No. 68 of 1870, p. 96, which provides that: “ Natural fathers and mothers shall have the power to legitimate their natural children by acts declaratory of their intentions, made before a Notary and two witnesses, provided there existed at the conception of such children no other legal impediment to the inter-marriage of their natural father and mother, except those resulting from color, or the institution of slavery.”

The' second Section of this Act repeals all laws in conflict, except that of November 5th, 1868, relative to certain marriages.

The third Section declares that, the Act shall take effect from and after its passage.

It is clear that, notwithstanding the prohibitory language of Article 222 of the Code of 1825, a white father could have acknowledged his colored child, not the offspring of an incestuous or adulterous connection. The well reasoned opinion of Mr. Justice Simon, as the organ of the Court in Compton’s case, 12 R. 57, (7L,) resting on 4 La. 175, and 14 La. 545, and on a comparison with other Articles, and subsequently affhned in the case of Casanave, 21 A. 437, decided in 1869, puts the question beyond all possible doubt. 6 L. 470 ; 30 A. 1169.

Such was the condition of the law in 1870, when Act 68 was enacted. That Act, far from disturbing the expounded meaning of the previously existing legislation, on the power of acknowledgment by a white parent, of a colored child, enlarged that power by conferring upon the white parent the privilege of legitimation of such issue, on complying with certain prescribed formalities.

Act 96, which revises statutes of a general character, and which is known as the “Revised Statutes,” took effect under Section 3990 thereof. It contains no provision in conflict with the anterior legislation, or jurisprudence, or with Act 68 of 1870. Even if it did, the other statutes of that year would take precedence. 25 A. 216; Bishop on Stat. Or. Sec. 179. Instead of weakening that act, it expressly recognizes, in Section 2173, the same right of legitimation, declaring formally, at the same time, that nothing therein contained shall be construed as to prevent a white parent from legitimating his colored children.

Act 97 of 1870, which revises the Civil Code of 1825 and the amendments made to it, and which, under Section 3990, in case of conflict, is to be tlie governing law, contains no disposition antagonistical or repugnant to the previous legislation, or jurisprudence, or to the regular Acts of 1870. On the contrary, its dispositions are ancillary to the objects contemplated under the new order of tilings.

The theory that Articles 200 and 204 of the R. C. C., and Section 2173 of the R. S. are limitative of the right of legitimation, by conferring it only on persons who could have contracted marriage at the conception of the issue, is inadmissible. It is a fallacy which consists in assuming that, considerate laws passed at the same session can be designed to accomplish a certain purpose, and without any apparent or plausible reason, to defeat that object at the same time. It is the result of a confusion of ideas on the subject. If it were a wholesome proposition, then the special law of 1870 (No. 68) and Section 2173 of the R. S., and Articles 200 and 204 of the R. C. C., would simply mean that a white parent, or a white and a colored parent, could and could not acknowledge or legitimate a colored issue.

We consider that the restriction found in Section 2173, R. S., and in Articles 200 and 204 of the R. C. C., must be construed and read together with Article 198 of the R. C. C., as laws in pari materia, R. C. C. 17, 18. If so construed and read, they can be made to apply solely to children begotten from an incestuous or adulterous connection, and to exclude such only from the benefit of legitimation.

If there existed any conflict between the Revised Civil Code and the Revised Statutes, on the one hand, and the Special Act No. 63 of 1878, on the other, the latter should predominate, under the very terms of the Special Act of the same year, which formally declares that all the Acts and Joint Resolutions passed during the session of that year, which may be contrary to, or in any manner conflict with the Acts of the same session, known as “ the revision of the Statutes of a general character and of the Civil Code and Code of Practice,” shall have precedence of said revisions, and be held as the law in opposition thereto, and as repealing those Acts, as far as they may be in opposition or conflict. 25 A. 216 ; Bishop on Stat. Or. 179.

The object which the legislature of 1870 intended to accomplish by enacting the several laws passed by it, whether found in the R. S., or in the R. C. C., or in the regular session Acts, on the subject of legitimation, unmistakably was to authorize a white parent to legitimate an acknowdedged colored issue, either by contracting or without contracting marriage, provided such issue be neither incestuous nor adulterous. That legislation has authorized the creation of legitimate and forced heirs, by persons who without it could not have done so, making heirs, those who, in its absence, could not have been such. 8 R. 422.

It is impossible to conceive upon what principle it can be plausibly claimed that tlie Revised Code proposed to reinstate, in this respect, the legislation previously in existence, and which the new order of things was designed to extinguish. The whole theory upon which the government was reorganized, as concerns the rights of persons in that particular, militates so powerfully against the pretensions of the petitioners, that it irresistibly destroys them completely. The law does not favor repeals by implication.

The juxtaposition of the different texts of the laws on the subject before us, clearly repels the theories advanced in antagonism of the rights of the opponents.

The Constitution of 1868, and the Statutes subsequently passed, which we have quoted, were designed to concede to all persons, without distinction or difference of race, or color or previous condition, the privileges of legally inter-marrying and thereby legitimating their previously acknowledged issue, and also of legitimating such offspring without contracting marriage, whether the other parent was living or dead, privileges which they did not enjoy before, imposing- these essential conditions, however, that the persons contracting marriage be not related within the prohibited degrees ; (Arts. 94 and 95); or bound by conjugal ties ; (Art. 93); or otherwise proscribed; (Art. 161); and that the acknowledged legitimated issue be not the fruits of adulterous or incestuous connection; (Art. 218); the children thus legitimated, to have the same rights as if bom during wedlock; (Art. 199, R. C. C.)

The Constitutional and Statutory provisions which we have considered, are in the nature of Statutes of indemnity, oblivion and pardon, and produce similar effects. 49 Mo. 17; 41 Mo. 184; 8 Wall. 595; 3 Serg. & R. 590, 598, (Penn.); 1-Binn. 601.

They may be assimilated on principle to naturalization laws. On that subject, the authorities are that, although an alien is not permitted to acquire land, still, that when naturalized, the naturalization relates back to and confirms the title to the land so purchased. Bouvier L. D. verbo Alien ; Paschal Annotated Const. 112 294; Morse on Citizenship, 77 ; 9 Wheat, 751; 1 Johns N. Y. Ch. p. 399.

It has been well held in this State, under a different regime, that emancipation gives to the slave his civil rights and a contract of marriage, legal and valid by the consent of the master and the moral assent of the slave, from the moment of freedom, although dormant during the slavery, produces all the effects which result from such contract among free persons.” 6 M. (O. S.) 559. See 25 A. 617.

The analogous question, whether incestuous children could be legitimated by the marriage of their parents, authorized by sovereign dispensation, after being a fruitful source of discussion among jurists, was conclusively determined in the affirmative in 1867, by the Court of Cassation of Prance, t-lien presided over by Mr. Troplong. The Court held that such marriages legitimate the issue in radice. The three rulings made in that year were subsequently affirmed in 1868, 1874, and again lately in 1879. Those decisions are in accord with those of the Parliaments of Paris of 11th May, 1665, 17th April, 1711, 4 th June, 1725, 25th Aug. 1738, and with the opinions of distinguished commentators and jurists. Vide J. P. 1867, pp. 113, 1122; 1868, p. 1020; 1874, p. 260; 1380, p. 210 ; vide also, Purgóle Test. t. 1, p. 373; Lebrun Sue. L. 1 Ch. 2, Sec. 1, Dist. 1, Nos. 12 and 13; Domat Lois Civiles, part 3, Ch. 5, duMar. Art. 24, No. 76; Pothier Cont. Mar. No. 414; Maleville Anal. C. C. T. 1, sur l’Art. 331; Toull. 2, No. 932; Demolombe, T. 5, No. 355; Duranton, v. 3, N. 177; Pont. Rev. do leg. and de jur. v. 8, p. 150; Albert verbo Mar. Art 6; Magnin des Minorites, 81 and 82.

The principles consecrated by a tribunal of the highest respectability and previously admitted by authors of undoubted superiority, can safely be applied to a controversy, in pari materia, which presents the unusual feature of a plenary sovereign dispensation from an otherwise annulling impediment.

We cannot subscribe to the theory advanced by the collateral relatives, that the marriage in this case was celebrated in violation of law, and so could produce no effect. They charge that it took place in the parish of St. Charles and not in that of West Baton Rouge, which was the place of the domicil of the parties, and that it was not solemnized with the authority of the officers empowered to issue marriage licenses in that place.

The provisions of the law to which they refer are directory. 30 A. 1169.

The authorities in 4 A. 375 and 12 A. 367, are to the. effect that, when minors contract marriage out of the State, without the consent of their tutors, and therefore in violation of our law, such marriage does not emancipate them, so as to confer upon them the rights which they would have had, if they had been dispensed from the time required to attain their majority, or if the marriage had taken place with the consent of the tutor.

In the first case, in which a family meeting had refused to emancipate the minor, for good reasons stated, it was well observed that through motives of public policy, the law does not pronounce the nullity of such marriages, but that it is equally against the sanie policy that they should be held to confer upon the parties in default, all the rights which result from the marriage of minors when legally contracted.

In the second case, in which the minor had gone to a neighboring State to evade our laws, which required the consent of the tutor, the Court wisely remarked, that emancipation is the consequence of an authorized marriage, and not of one made in fraud of our laws; that the Courts of another State cannot emancipate minors whose domicil is here, and that such marriage there, in contravention with our laws, cannot produce any greater effect towards the emancipation of the minor.

We are unable to discover what bearing those authorities can have to the present case, in which no law was violated and in which no punishment can be inflicted.

The result of the contrary doctrine contended for would be, while recognizing the validity of such marriages, to deny to them all and any effect, a consequence so subversive of the teaching that the law favors marriages, that it must be repelled.

The doctrine is perfectly wholesome. Had it not been declared and applied as it was, the consequence would have been an encouragement to ill inclined and unbridled minors to disregard the will of those in charge of them. It would have proved an authority to them to override and evade the law, and by so doing, to reap indirectly advantages which they could not have realized directly.

The philosophy in those cases is not at all that which underlies the principles governing the present litigation.

A marriage contracted, as was that in this instance, is not only licit but legal, and produces the same effect as if contracted at the domicil of the parties, and solemnized with the sanction of, or by the competent authority there. 4 A. 375; 12 A. 367.

We therefore conclude, that the marriage of the parties was authorized by law; that they had previously duly acknowledged their children: that their marriage has legitimated those children, who enjoy the same rights which they would have had if begotten by persons wholly of white or colored descent, fully capable of contracting alegal marriage, and had they been born during lawful wedlock.

Under this ruling, the collateral relatives are not entitled to the estate of the deceased, which therefore accrues to the opponents, as his legitimate and sole heirs.

The appellants complain that the judgment of the lower court was rendered ultra petitum, when it ordered the administratrix, widow Colwell, to file an account. It is claimed that, there being no prayer in any part of the pleadings for any such relief, the judgment should be reversed.

The appellants are the collateral relatives of the deceased. The record does not show that the administratrix is an appellant, or has prayed for an amendment of the judgment, or that she is represented by the counsel of those relatives. The appellants cannot be heard thus to champion vicariously, the rights of the administratrix and insist in her behalf upon a relief, for which she does not appear to be over sanguine.

We find no error in the judgment; appealed from, which is therefore affirmed with costs.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8423.
    The State of Louisiana ex rel. Y. R. Lemonnier vs. J. C. Beard.
    Wlien an officer claims an office as having been commissioned thereto, to fill a vacancy occurring therein, in a stated manner, and the defendant sets up title to the office as he would have' done in a direct proceeding, the Court is authorized, under the pleadings, to pass upon the respective titles of both parties, and to adjudicate the office to whomever is entitled to it.
    Where an officer, elected at tire first general election under the present Constitution, who is required to give bond, and not being protected by exceptional legislation, does not furnish such bond within the thirty days following the reception of his commission, he is to be considered as having forfeited all rights to the office, which becomes vacant, and the Governor has the right to filL the vacancy thus created.
    APPEAL from tbe Civil District Court, for tbe Parish of Orleans. Houston, J,

      H. Howard MeOaleb, for tbe Relator, Appellant:
    1. The failure of an officer elect to qualify by giving bond within thirty days after the receipt of his commission, operates a vacation of his office, and the Governor has the right to fill such vacancy by appointment. Act No. 19, approved February 9tb, 1878 ; 26 Ark. 281, The giving of bond is an essential prerequisite, which could not be dispensed with. Act No. 11 of 1877, State ex rel. Lisso vs. Beck, 30 A. 280. “ Vacancies may occur by refusal to qualify.” Cushing’s Law and Practice of Legislative Assemblies, 452.
    2. A Coroner elect, who, after taking the oath, subsequently accepts of the office of Member of the Board of Health, enters upon the duties thereof, and continues in such office after the time had arrived for him to discharge the functions of Coroner, and until October 21st, 1881, thereby impliedly resigns the Coronership. (Cushing’s Law and Practice, 469 $ Gen’i Blair’s case; McCrary’s Am. Law of Elections, §242, pp. 179 and 180.) The two offices — Coroner and Member of Board of Health — are incompatible. Act No. 80 of 1877. They are both constitutional offices. Constitution, Arts. 159 and 178, An office is impliedly resigned by accepting of another incompatible therewith. Dillon’s Municipal Corporations, §§ 163,164,166, note 4; Angelí & Ames on Corporations, §11, p. 425. Will-cock on Corporations, 245, 246, 247 and 248.
    Taking the oath is an “acceptance of an office in a formal manner.” Cushing’s Law and Practice Leg. Ass. 479.
    The acceptance of an office, incompatible with one already held, vacates the latter. 29 A. 824 ; 32 A. 193; State vs. Delwood, 33 A. N. B.

      W. 8. Benedict and A. D. Henriques, for tbe Respondent, Appellee.

      Miller, Finney <& Miller, on tbe same side.
   The opinion of the Court was delivered by

Bermudez, C. J.

The Relator and the defendant respectively assert conflicting claims to the office of Coroner for the Parish of Orleans.

Prom a judgment recognizing the latter as entitled to it, the State and the former have appealed.

The gravamen of the petition is: that the Relator was appointed and commissioned to the office by the Governor, on the 21st of October, 1881; that he took the oath and furnished the bond required by law on the 22d and 27th of the same month; that he was so appointed and commissioned to fill a vacancy in the office, resulting from the disqualification of the defendant, who had been elected and commissioned to the same; that the defendant obstructs and hinders the Relator in the exercise of the duties of the office, and that Relator desires being quieted in the possession of the same. The prayer is, that the defendant be declared to have forfeited the office of Coroner, and be adjudged guilty of usurping and intruding into said office, and excluded therefrom, and that it be decreed that the Relator is legally invested with the title of the office.

The defense is, first, a general denial, and next, an assertion of the right of the defendant to the office, by virtue of his election thereto, on the 2d of December, 1879, for four years from the 2d of August, following; his commission from the executive, issued on the 5th of Januaiw, 1880; his oath of office taken on the 4th of February; his bond furnished on the 31st of July, and registered on the 2d of August, following; his induction then into office; a total absence of resignation since, on his part; his actual possession of the same, with all its incidents ; a peremptory denial that there existed any vacancy in the office at the date of Relator’s appointment, which was wholly unauthorized. The defendant concludes by praying, both that Relator’s petition be dismissed, and that there.be judgment in his favor.

At the inception, the proceedings were charged with irregularity, but the parties have expressly agreed that they be considered as instituted under the intrusion into office act, and be conducted and determined under its provisions.

The only question presented by the pleadings, which run the one into the other, and blend themselves, is simply:

Whether there existed a vacancy in the office of Coroner of the Parish of Orleans, when the Relator was appointed and commissioned by his Excellency, Governor MeEnery, to fill it, and whether, if it existed, the Governor could thus fill the vacancy.

The corollary of the proposition is, that if there existed such vacancy, and the Governor had a right to fill it, the Relator is entitled to the office, having seasonably complied w'ith legal requirements; and that if there existed no vacancy, original, constructive or absolute, 32 A. 637, which the Governor could then fill, the appointment of Relator is inoperative, and the Respondent is authorized to continue in the possession of the office and in the discharge of its functions.

There can he no dispute touching the facts of the case. The evidence clearly establishes them to be as alleged by the litigants. It shows also, under an averment of the petition not previously noticed, that the Respondent was, since the date of his commission and oath of office, viz: in April, 1880, elected a member of the Board of Health, and that he lias qualified and acted as such, until the latter part of October, 1881, when he resigned the trust.

On the one hand, it is urged that there existed a vacancy, because, after accepting, in February, the office of Coroner, the Respondent accepted, in April following, that of member of that Board.

On the other hand, it is pressed that when the Respondent accepted the appointment on that Board, in April, and at first acted under it, he had not qualified as Coroner and was not in office $ that, as he only qualified as Coroner by giving bond on the 31st of July, 1880, it is then that he vacated his membership of that Board; that his subsequent action in it was that of an intruder, which did not operate a vacancy in the office of Coroner; that even if it did, he could have been displaced only by judicial action, and that the Governor had no right before a vacancy had thus been declared, to appoint the Relator.

From the'view which we have taken of the merits of the controversy, we deem it unnecessary to notice the allegation in the petition and the evidence adduced in support, to the effect that the Respondent was elected, commissioned, qualified and acted as a member of the Board of Health. It is true, that the allegation was made that a vacancy was thereby created in tlie office, but leaving it out of sight, as though it had not been made, there remains the broad charge of disqualification, which, coupled with the prayer and the formal consent of the parties as to form, impresses upon the action the character of a proceeding under the intrusion into office act, in which both litigants raise claims to the office. What evidence the Relator did not, or possibly could not offer, was supplemented by the Respondent, under Ms assertion of title in himself, and in justification of his own prayer for a judgment in his favor.

The suit was not brought by the State alone to test the right of the defendant, but was instituted by the State on the relation of a party interested, claiming the office, who produced prima facie muniments of title to the same.

We feel no hesitation in thus dealing with the pleadings.

In a matter involving a' question of public interest, arising under laws enacted for the preservation of public order and for the maintenance’of public good, we could not, consistently with duty, consider the State and the Relator, presenting an appearance of a public functionary in a case in which more than his personal advantage is at issue, as concluded by an averment from which an admission might be inferred, that the Respondent had qualified, when the Respondent, proves that he has not done so. The confession and consequent estoppel could enure to the benefit of defendant only, and constructively to the detriment of the community; but how could the Respondent insist upon such a technical proposition when he himself, properly realizing the essential necessity of establishing beyond doubt, a compliance with the rigid requirements of the statute, has treated the averment as though not made, and has introduced the clearest ovidence demonstrating tangible errors.

Were it otherwise, we might find little obstacle in arriving, on the merits, at the same result which we have reached from a different standpoint.

An inquiry into the apparent right of the Relator exacts a consequent legitimate determination of the claims of the Respondent, for it is only in the contingency that he has none, that the pretensions of the Relator can be recognized and enforced.

We must then divide the inquiry and ascertain :

1st. Whether the Respondent has, under the commission issued to him by virtue of his election, legally qualified under the law, and if not, whether Ms failure to do so, operated ipso facto a divestiture.

2d. Whether the Governor could fill, by appointment, the vacancy thus happening.

I.

By Act 19 of 1878, Sec. 1, (p. 43) it is provided: that all State, District and Parochial officers of this State, whether elected or appointed, shall be required, within thirty days after the receipt of their commissions, to take the oath of office prescribed by law, and give bond, where bond is required, and cause the same to be filed in the proper office, in the manner and as required by law. Section 2 further provides : that the failure of any officer to comply with the requirements of Section 1 of this Act, within the limitations therein fixed, shall operate a vacation of such office, and the Governor shall proceed to fill said office by appointment, as in other eases of vacancy.

Ten years previously, Act 39 of 1868 had been passed, the seventh section of which twice received judicial consideration, 21 A. 490 ; 24 A. 19, the Court decreeing its unconstitutionality.

It. was an odious enactment, retrospectivo in character, oppressive in its object.; designed to affect, the tenure of officers in office at its adoption, by requiring arbitrarily from them, the fulfilment of certain ceremonies which the Constitution and laws in force at the time of their induction did not demand. It spoke in opposition to the Constitution by enlarging its requirements. It contained, however, no formal irritating clause; that is, no punitory provision visiting upon the delinquent an instantaneous divestiture of his title to the office.

In the case in 21 A., the Court noticed this omission, saying : Failure to take the oath, testing his (Relator’s) ineligibility, and to file it in the office of the Secretary of State in the time limited in Act No. 39, did not, ipso facto, destitute him of office.” This ruling was affirmed in 24 A. 19.

Subsequently, in State ex rel. Lisso vs. Peck, 30 A. 280, the same Act of 1868 received further attention, and the Court, said: that the. legislature had not declared that a failure to execute a bond within thirty days shall operate, ipso facto, a divestiture of a constitutional office, though such failure may be considered as a presumption of abandonment.

This decision was rendered on the 4th of February, 1878. It neither admits nor denies a lack of power in the legislature, to provide for the consequences of such omissions; but it leaves the question an open one for future determination.

On the 9th of February following, Act No. 19 of 1878, under consideration, was approved. It is claimed that it was adopted to. meet the-legislative deficiency alluded to in the case, and it does so appear. It provides, as already stated, that a failure to comply with its requirements, within the limitations fixed, shall operate a vacation of the office, and that the Governor shall proceed to fill it, by7 appointment, as in other cases of vacancy.

In the absence of any constitutional inhibition, we cannot perceive why the legislature shonld not be, and was not competent to provide in that manner, in order to enforce a compliance by all public officers in the State, with the laws requiring them to quality, by taking an oath and furnishing a bond, where one is demanded, within reasonable delay.

Neither in the oral nor in the printed argument submitted on behalf of the Respondent, nor in the authorities to which our attention has been invited, have, we discovered any' valid reason whyr such legislation should be paralyzed, on the ground of unconstitutionality.

The admitted elementary and familiar rule in such matters clearly is, that the Legislature essentially possesses the inherent power to legislate as a sovereign on all subjects and in all manners, unless by so doing it contravenes a constitutional prohibition found either in the State, or in the federal organic law. Cooley on Const. Lim. 100, 107, 204, 208, 209.

At the time when the Respondent was elected and commissioned, the Act of 1878, which was prospective, and that requiring bond and security from him, R. S. 649, were in force. He therefore well knew that he had to take the oath and to furnish the bond, within a specified time, under penalty of forfeiture of his right to the office.

We do not regard the requirements of the Act of 1878 as merely directory, but consider them as mandatory, as they inflict a penalty in case of non-observance. The use of the word shall in the two sections, 1 and 2, collided with the penalty, denote an imperative command for the benefit of the public, that the fundamental acts of taking the oath and of furnishing of the bond shall take place, as conditions pi-ecedent, nine quibus non, within the fixed period and at no other time.

No court certainly has the right to hold any requirement of a law Unnecessary to be complied with, unless it is manifest that the legislature did not intend to impose the consequence which -would necessarily follow from a non-compliance, or which would result from holding the requirement mandatory or indispensable. If it be clear that no penalty was intended to be imposed for a non-compliance, then, as a matter of course, it is but carrying out the will of the legislature to declare the statute on that subject to be simply directory. But if there be anything to indicate the contrary, a full compliance with it must be enforced. Corbett vs. Bradley, 7 Nev. 108; Hart vs. Omaha, 4 Neb. 336; State vs. Johnson, 26 Ark. 281; Wendell vs. Durbin, 26 Wis. 390; French vs. Edwards, 13 Wall. 566; Torrey vs. Milberry, 21 Pick. 67; Wiley vs. Flournoy, 30 A. 609; Cooley Const. Lim. No. 77, et seq. and notes; Sedgwick on St. and Const. Law, p. 375, and notes.

AYhatever it may be claimed that the saying of the Court was in 30 A. 280, it can have little or no bearing on the instant case, as the law then under consideration was that of 1858, and that now under examination is that of 1878, which are very materially different. The. latter virtually provides that "which the former had been declared not to contain, namely: that the failure to comply with the requirements of the taking the oath and furnishing the bond, within a limited period, shall, ipso facto, operate a vacation of the office, and that the Governor shall proceed to fill it, as in other cases of vacancy.

It is manifest that the law imperiously requires both the taking of the oath and the furnishing of the bond, within the thirty days following the receipt of the commission, and that it exacts a rigid compliance under a heavy penally.

It is an elementary principle, in the construction of Statutes, and which is formally recognized in our Code, that where a law is clear and free from all ambiguity, the letter is not to be disregarded, under the pretext of pursuing its spirit, R. C. C. 13. Ubi lex non distinguit, nee •nos distinguere clebenivs.

Whatever may be the position which the Respondent may assume, it irrepressibly proves destructive of his pretensions.

It is totally immaterial whether Respondent’s commission, which is dated January 5th, took effect on that day, or on the 4th of February, when he took the oath, or in the beginning of April, under Article 265 of the Constitution, or on the iirst Monday of August, when he filed his bond in the office of the Secretary of State, and which was the day on which the government was reorganized under Article 266.

It is glaring that the Respondent has completely omitted to comply with the exigencies of the law, by failing to do the two acts, the taking of the oath and the furnishing of the bond, within the thirty days which followed either of those initial points.

The unavoidable consequence of such dereliction was, in the words of the Statute, to operate a vacation in the office ” and to impose upon the Governor the duty of filling the vacancy thus created.

This disposes the first branch or subject of inquiry in the case.

II.

We are now led to consider the next important proposition :

Whether the Executive could treat the office as vacant, and fill it accordingly.

It is undeniable that the Governor has, under Article 69 of the Constitution, authority to fill vacancies happening during the recess of the senate. It necessarily implies the right to ascertain whether a vacancy exists, and if it exists, to fill it by the appointment of a proper person.

The theory that the Governor cannot exercise that authority, unless after a vacancy has been judicially declared, is utterly without foundation, as an absolute proposition of law. Were it so, vacancies occurring by death, resignation, removal by the legislature or expiration of term, could not be filled until after they had been announced as existing, by judicial determination, and in the meantime, the government would be, in some instances, deprived of its official and necessary agents and representatives.

But the theory is founded on sound principles of political economy, when it goes to the extent, as a relative proposition of law, that the Governor cannot do so, so as to conclude officials who may have been deemed, in error, to have died, to have resigned, to have been removed, or whose term may have been considered as expired, or to have forfeitecl their rights to an office, when the fact is, that they are not dead, have not resigned, have not been removed, that their term is nneapired, or that they have not forfeited their right to the office.

The authority vested in the Governor to fill vacancies, can only be exercised, and when exercised, prove conclusive, where he has made an appointment to fill a vacancy actually and legally existing, in the discharge of liis official functions.

In the eventuality that an appointment has not been made in such contingency, it could not prove conclusive. The issuance of a commission under it would not debar the aggrieved from resisting displacement and appealing to the tribunals of the country, who would then be competent, on inquiry, to determine the question of vacancy vel non. Otherwise, under a disregard of official duty, or a misapprehension of facts, a Governor might, arbitrarily or unwittingly, without warrant of law, displace or remove the officers of the government, and create a condition of things which the fundamental law never for a moment designed to permit or to sanction.

In a recent case, 33 A. 871, we had occasion to apply the doctrine and to declare that a commission, issued in error by the executive, could not deprive an incumbent of his right of office. There exist a number of instances in which the principle was invoked and recognized in this State. 12 A. 719 ; 17 A. 161; 21 A. 490; 24 A. 19 ; 25 A. 396; 32 A. 936; 33 A.

Did we find in the very instance before the Court, that the Respondent had qualified under the Act of 1878, and .having thus qualified, had not vacated the office by the acceptance and filling of another office which the Constitution prohibits him from simultaneously holding, we assuredly would feel authorized so to adjudge, and to strike with nullity Relator’s appointment and commission to the office in question.

We must not be understood as holding that, in the exercise of the power giveri to him by law, of removing public officers for certain causes, the Governor is not the sole judge of the existence of such causes, and that his action of removal is not final and is revocable by the judiciary. In the case of the State ex rel. vs. Lamantia, 33 A. 447, we have clearly announced the law on that subject, and we affirm what we there said.

It is, therefore, only in those cases in which a vacancy indisputably exists and has been legally filled, that the appointment and the commission issued in furtherance, by the executive, will, after investigation, be maintained by the judiciary. Whatever may have been said apparently at variance with this doctrine, in our jurisprudence, must bo considered as subordinate to that limitation, which is one of great public magnitude.

We therefore conclude that the Respondent forfeited his right to the office of Coroner of the Parish of Orleans, to which he had been elected and commissioned, by not qualifying under the requirements of Act 19 of 1878; that his failure to do so lias operated ipso facto a vacancy in that office; that it then became the duty of the executive to fill the vacancy thus happening; that the executive has made a legal appointment and issued a valid commission to fill such vacancy; that the Relator has qualified under such appointment and commission and has the exclusive right to discharge the functions of that office, under the Constitution and the laws of this State.

The finding of the District Judge is erroneous.

It is therefore ordered and decreed, that the j udgment appealed from be reversed, and proceeding to render such judgment as should have been rendered by the lower court:

It is ordered, adjudg'ed and decreed, that the Respondent, J. C. Beard, be declared to have forfeited all right to the office of Coroner for the Parish of Orleans, by reason of his failure to comply with the requirements of Act No. 19 of 1878, and that the Relator, Y. R. Lemonnier, be pronounced to have been duly appointed and commissioned, and to have duly qualified, to fill the vacancy created in said office, by said forfeiture, during the unexpired term of the same.

Tt is further ordered, that the Respondent pay costs in both Courts.

On Petition bor a Rehearing.

The application rests on the following grounds, specifically set forth, viz:

1st. “ The decision of the Court is not based upon any issue formed by the parties, or upon which the cause was decided by the lower court.
2d. “ The point decided was not the cause which actuated the Governor of the State in issuing a commission to the Relator.
3d. “ The Act No. 19 of 1878, upon which the said cause was so decided, does not in letter and spirit, maintain the principle deduced therefrom in the opinion of the Court.
4th. “ Laws are to be construed in accordance with their letter and spirit, and in such construction the causes which induced the legislator to make them must be duly regarded.
5th. A constitutional officer can only be removed for cause as designated by the Constitution.”

Wo consider these apparently different causes of complaint simply to mean:

That the judgment is not justified by the pleadings,

That the Act of 1878, which the judgment enforces, was repugnant to the Constitution of 1868, which was in force at its adoption, and that it is inconsistent with the Constitution of 1879; therefore, that it never had any existence, and, if it had, it was repealed.

That if it was constitutional and is in force, it cannot be applied to the defendant, who could not have entered upon his office, which was not in existence, when he received his commission and took his official oath.

I.

The suit is a proceeding by the State, on the petition of the Relator who claims, under a commission from the executive, the office of Coroner for the Parish of Orleans, to the exclusion of the defendant thorefrom, on the ground that he has vacated the same, by accepting, after qualification, another office. The defendant denied the allegations. Averring title in himself to the office, as having' been elected and commissioned thereto, and taken the oath and furnished the bond required by law, the defendant prayed for judgment in his favor. Preliminary skirmishes, as to form, were silenced by a formal consent that the action be considered as brought under the intrusion into office act. The trial of the case proceeded on the merits. Evidence was introduced by both litigants without objection, and admissions were made by the parties, which fully established the facts by them respectively averred.

It may well be, that had the defendant merely answered by a general denial, evidence could not have been introduced on objection to show non-compliance by him with the law of 1878; but the defendant having-set up title in himself and averred his qualifications, supporting his allegations by proof, and praying for a judgment, he cannot complain that the Court has decided a question raised by him directly and specifically.

The question, under the allegations and the' evidence establishing them, was simply, which of the two litigants was entitled to the office. We found in favor of the Relator and against the defendant. We might have found for the defendant and against the Relator.

It is therefore patent that the judieatum was responsive to the quid judioandmm under the allegata, as modified and verified by the probata, namely, the issues presented by the parties themselves.

We revise the decrees and not necessarily the reasons assigned in support by inferior tribunal's. The decisions of this Court arc not required to be based upon and are not restricted to issues on which causes are decided in the lower court.

For the determination of this controversy, on the issues presented by each party, it was not necessary to inquire into the motive which influenced the Governor in making the appointment. We do not say that the motive which is stated to have actuated him was not a proper one. We have preferred to rest our decision as we did. The important question was and is: did there exist a vacancy which the Governor could fill, and has he filled it?

That is the issue which we decided and which, owing to the magnitude of the question, we will again consider on this application.

H.

It is claimed that the Act of 1878 was repugnant to the Constitution of 1868, because its objects and purposes were beyond legislative authority or scope.

In support of that theory, the proposition is advanced, that it is a law of removal, by the executive, of a constitutional officer for a cause not enumerated in the organic law for his exclusion: that the legislature of 1878 assumed to add causes of removal to those mentioned in the Constitution of 1868, to vest the executive with a power conferred on other functionaries, and that the legislation being prohibited, is absolutely barren of any legal effect.

It is an axiomatic proposition, that a legislature is powerless to act where the Constitution has spoken and has left no room for its action. Hence, when a Constitution has provided for the qualification of certain officers, for their removal for certain causes, by certain authorities, and in a certain way, a legislature is incompetent to prescribe, as to those same officers, for different qualifications, different causes of removal, different authorities or different ways. It can neither add nor take from the Constitutional provisions on those subjects, which must remain untouched and enforced as written. It is because of a transgression of that principle, by the legislature of 1868, that the Supreme Court has declared the unconstitutionality of Act 39, then passed by that body. 21 A. 490; 23 A. 19; 28 A. 445.

Where a legislature, however, enacts laws concerning officers not mentioned in the Constitution, in order to compel them to furnish, within a fixed delay, the bond required of them by a law in force at the date of their election or appointment, and does so in mandatory terms, inflicting as a penalty, the forfeiture of the right to the office, in case of non-compliance, those laws cannot be said to be in conflict with the organic law when it is silent on the subject. Such legislation must be held to be valid and consequently binding.

Previous to the adoption of the Constitution of 1868, in which not a word is found relative to the office of Coroner, there existed laws requiring bonds from certain officers, which, not being in conflict with it, were expressly continued in force by Article 149. Among them was the law requiring a bond from the Coroner for the Parish of Orleans. Acts of 1855, No. 93, R. S. 1856, p. 167, Sec. 1.

That law continued in existence until it was changed by that of 1868, No. 181, creating two Coroners, two incumbents for the office, directing their election and requiring' a bond similar to that' previously exacted.

This law of 1868'was maintained in force by Articles 258 and 259 of the Constitution of 1879, but modified by Article 147, which reduced the number of incumbents from two to one, fixing- his salary, but leaving it otherwise unaltered. The defendant has admitted the existence of that law, on the 2d of August, 1880, by furnishing a bond for $25,000, which is the amount fixed by it.

The legislation of 1878 found the Acts of 1855 and of 1868, concerning the office of Coroner, in force, and in demanding that officers of that class, who were required to take an oath and 'give a bond, should, after the date of the Act, do both acts within thirty days after the reception of their commission, it not only violated no constitutional provision, but, on the contrary, proved ancillary, and thus subserved the public interest.

As the Constitution of 1868 contained no mention of the Coroner, it cannot be claimed that the legislature of 1868 trenched upon it when it passed the Act.

We therefore conclude that when it was enacted, that law was not repugnant to the Constitution in operation, and that it continued in force afterwards, at least until the organization of the government under the Constitution of 1879, and then ceased to exist, if it was inconsistent with it. Art. Const. 1879, Nos. 258, 259. -

The question now arises: Was it repugnant to that Constitution? If it was, then it has been repealed, and is a lifeless form.

The theory upon which its unconstitutionality is claimed, lacks all foundation, as far as the defendant is concerned, and all officers like- ■ wise situated.

The Constitution does not provide that the Coroner, whose namo it contains, shall not give bond, besides'taking- the oath required, without exception, from all- State, parochial and municipal officers. The laws relative to the office of Coroner, in existence at the adoption of the Constitution, not being inconsistent therewith, were continued in being as'if the Constitution had not adopted Art. 258. The next Article, 259, provides'specially to that effect. In other respects, the Constitution has expressly left a door wisely open for eventual legislation, for it declares, Art. 147, that there shall be one Coroner for the Parish of Orleans, * * * whose duties shall be regulated by law.

The Act of 1878 continued in force. It did not add to the qualifications of the Coroner. Those qualifications were previously fixed in 1855 and in 1868. The existence and binding effect of the Acts of those years were formally recognized by the defendant, who complied with them by giving a bond on the 2d of August.

It is true that the Constitution of 1879, Arts. 298, 200, 201, provides for the causes of removal of certain designated officers, among whom the Coroner, but it cannot be claimed that the Act of 1878 has added to those causes, by prescribing as it does. It is not correct to say that it is a law of removal. Its solitary object is to force a compliance with the duties imposed by other laws touching the giving of a bond, by decreeing a forfeiture of the right of office, in case of non-observance of its requirements.

The Constitution refers to the removal of officers regularly and actually in office, charged with the commission■ of certain specified acts, done before or after their induction into office. It does not contemplate or propose to deal with the cases of officers not yet in office, or irregularly or illegally so, amenable to charges of omission of official duties or obligations, imposed upon them by law and to he performed before taking possession of the office. In other words, the Constitution provides for the removal of commissioned and qualified officers for acts done or committed, and does not provide at all for the exclusion of commissioned officers from office, for acts not done or omitted, and which should have been accomplished, as essential conditions precedent.

The law of 1878 is not one for the removal from office of any officer commissioned and qualified, regularly in office, and for the commission of disqualifying acts done. It is a law for the exclusion from office of officers commissioned but not qualified, not in office, or illegally so, for the omission of qualifying acts.

Tt is not correct, to say that this law vests the executive with the power of removal for causes not mentioned in the Constitution. No such object ever was contemplated and no such power was conferred. It merely declares, that officers who shall fail to qualify, within thirty days after the reception of their commission, shall forfeit their right to fill the, office, that there shall exist a vacancy, and that it shall he the duty of the. Governor to fill the vacancy in the exercise of the powers with which the Constitution has clothed Mm. The Governor is not vested with judicial powers to sit in judgment and pass upon the guilt or innocence of officers charged with disqualifying offenses, or with incompeteney, and to remove them from their position. He has not done so in this case. He is merely explicitly told that in such cases, as the Act provides against, there shall exist a vacancy, which, in the exercise of his powers, it will be legitimate for bim to fill by appointment, as be might and should fill, as effectually as when such occurs in consequence of death, resignation, removal or expiration of term. That portion of the law was entirely superfluous, as the power of filling vacancies is specially conferred on the executive by the Constitution. As a matter of necessity, he has the right and is bound, before making an appointment, to ascertain whether there exists a vacancy, just as he would in a case of death, or any other case.

The Act of 1878 is not the only one of that description on our statute books. See Secs. 366, 380, 3765, 3540 of the R. S., 1870.

While the Constitution of 1868 was in operation, this Court held that the failure of a District Attorney pro tern., who had been elected by the Police Jury, to qualify within the legal delay, created a vacancy which could be filled by appointment of the Governor. 30 A. 657. Similar laws have been enforced in other States. 27 Ind. 496; 7 Kansas, 327, 52 Ala. 66, 491.

III.

The argument is devoid of merit, that if the law he constitutional, it cannot be applied to the defendant, who could not have entered upon the duties of his office, which was not in existence when he received! his commission and took hig official oath.

The office was created by the Constitution, and came into existence when the Constitution was adopted. The very instant that the defendant was elected to it, he became entitled to it on two conditions; first, that he would qualify by taking the oath and giving the bond ; and.secondly, that, surviving the Constitution of 1868, he would be in existence, ready and competent to be inducted into office at the organization of the government under the new Constitution.

The decisions in 32 A. 638 and 1232, are not to the effect that the offices created by the Constitution of 1879 did not exist until the 2d of August, 1880. Offices and officers in esse prior to that day, under the previous Constitution and previous legislation, continued until that day and until the induction of the new officers appointed or elected. Offices and officers in posse, created by the new Constitution, were kept in suspense until the happening of the two events, when they went into palpable actuality and activity.

We cannot be asked to ignore the letter of a mandatory law and to seek its spirit. We must apply that letter when it has a reasonable and plausible meaning. If we were at liberty to look after the spirit of the law in this case, we would say that it is such as justifies the application of the statute in all its rigor, to the defendant and to all others similarly situated, from whom a bond is required and who are not dispensed, by some provision, from the operation of that act.

We never intended to say, and did not rule that tills law applied to> the constitutional officers first appointed or elected under the Constitution of 1879, who were required merely to take an oath. As to them it is no doubt true, that Act of 1878 proved inoperative, for the reason that, by Articles 149, 264 and 266 of the Constitution, they are required to take their oath only before entering upon the discharge of flieir duties. They could well have taken the oath in anticipation, or after the time had arrived when they could have been inducted into office.

By Article 149, the form of the oath required from all officers is given. By Article 264, certain named officers are directed to enter upon the discharge of their respective offices on the second Monday of January, 1880, and all other officers on the first Monday of April following, except those designated in Article 266, among whom the Coroner in the Parish of Orleans, who are authorized or required to enter upon their respective functions on the first Monday of August of the same year, <1880.)

The officers to whom the-Constitution refers in those Articles, are those whose election or appointment, provided by it, was to take place for the first time. The Constitution is clear that all those officers shall enter on their duties “ after complying with the requirements of existing laws."

This means the taking of the oath at any time before going into office, and the giving of the bond, where one is demanded, within the period fixed by the existing law, namely: the Act of 1878.

What the effect of this law may be, in relation to officers hereafter to be elected or appointed, and from whom a mere oath is required, is a question which is not before us, and on which we refrain from expressing any opinion.

The law of 1878, which was thus bridged over, has not interfered with the officers-first elected or appointed under the new Constitution, and from whom the official oath alone is prescribed, but has continued operative as to the officers from whom a bond is required. Its object was to secure the prompt furnishing of such bond by officers from whom one is exacted. To that extent, it neither was repealed nor suspended.

The penalty attached by the Act of 1878, for non-compliance with its exigencies, is a forfeiture of the right to the office.

When enforcing that Statute in its rigidity, we perform a solemn and unavoidable duty.

We find no error in our previous decree, which, therefore, remains undisturbed.

The petition for a rehearing is refused.