State ex rel. Robinson v. McNeely

24 La. Ann. 19 | La. | 1872

Wyly, J.

The relator, M. D. Edmondson, proceeding under tbe intrusion act, complains that tbe defendant has intruded into tbe office of parish judge of tbe parish of Sabine, which office belongs to tbe relator by virtue of Ms election at the November election of 1870 and to which be was duly commissioned and qualified.

Tbe defendant’s title to the office is tbe appointment and commission from tbe Governor, dated seventh March, 1871.

Tbe court gave judgment for tbe relator, declaring him the lawful incumbent of the office. The defendant appeals.

There is no doubt that tbe relator, M. D. Edmondson, is tbe lawful incumbent of tbe office in question. He was duly elected and qualified, receiving bis commission from tbe Governor, dated thirty-first December, 1870.

It is not pretended that lie lias resigned or has been removed by-address or impeachment. It appears as a matter of fact that the commission to the defendant was issued by the Governor in error, the Governor having been led to suppose that the plaintiff had left the State permanently and thus abandoned his office.

It is well settled that a constitutional officer can not bo destituted of Ms office except in the manner provided in tho Constitution, and that the appointment to an office not vacant gives no title thereto.

It results, therefore, that the appointment of the defendant on the seventh March, 1871, did not divest the lawful incumbent of his title to the office by virtue of his commission issued December 31, 1870: State ex rel. Downes v. Towne, 21 An. 490.

Judgment affirmed.