No. 6497.

#### STATE, EX REL., MARRERO, DISTRICT ATTORNEY, vs. EDWARD FORTMEYER AND ANTONY ROUPRICH.

Syllabus.

1. Where the law contemplates that an elected officer shall not enter upon the discharge of his duties until he receives a commission and further provides that no commission shall issue to him until thirty days after .his election, the term of such officer does not begin until thirty days after his election.

2. Regular terms of office succeed each other in rotation without intermission, the one expiring when the other begins, and vice versa.

*149Appeal from the 28th Judicial District Court, for the Parish of Jefferson, .No. 1917. Honorable P. E. Edrington, Judge.

L. H. Marrero, Jr., for plaintiff and appellee.

F. A. Middleton, St. ’Clair Adams and H. N. Gautier, for defendants and appellants.

His Honor, JOHN ST. PAUL,

rendered the opinion and decree of the Court, as follows:

Certain police jurors of the Parish of Jefferson resigned their offices on May 1st, 1915.

On the same day the Governor appointed defendants for the unexpired term.

Under the terms of Act 112 of 1912, the Governor fills vacancies by appointment, if the unexpired term be for less than one year. Otherwise the vacancy is filled by election.

By the terms of Act 161 of 1894, police jurors are elected at the general State election — and hold their offices for four years.

It is a well settled principle of public law that the terms of elective officers begin and end with the election, unless otherwise provided by law.

But we think that as to police jurors, a purely statutory office, the law has otherwise provided, as it had the right to do.

Article 83 of the Constitution of 1913, Section 25 of Act 152 of 1898, Act 41 of. 1873, p. 80, and paragraph 3 of Section 3 of Act 159 of 1912, when taken together, show that no civil officer is permitted to assume office without a commission issued to him by the Governor of the State, except those specially exempted.

*150But the right to hold an office which can be assumed only by virtue of a commission involves necessarily the right to demand and obtain possession of that commission.

Marbury vs. Madison, 1 Branch, 137.

And the right to demand and obtain a commission necessarily implies that a commission may lawfully issue to the claimant.

It follows, therefore, that when the Legislature provided, as it did in Section 25 of Act 152 of 1898, that no commission should issue until thirty days after the election, the Legislature said in words clear and unambiguous, that elective officers should not assume the offices to which they had been elected until thirty days after the election.

But to say that an elected officer shall not assume the duties of his office until some certain period thereafter, is in effect, to say that his termi of office shall not begin until that time is reached; in fact the former mode of expressing the time at which an officer’s term begins is quite as usual as the latter.

Not to multiply examples we mention only two — Article 54 of the Constitution of 1913 declares that “the Governor and Lieutenant Governor shall enter on the discharge of their duties the first Monday next ensuing the announcement by the General Assembly of the result of the election for Governor and Lieutenant Governor.” This ha,s no other meaning than that their term of office shall begin at that time.

And again, Section 3 -of Act 159 of 1912, provides that the Mayor and ’Commission Councilmen of New Orleans shall be elected the Tuesday following the first Monday in November every four years, and “shall take their *151seats and assume charge of the offices to which they shall have respectively been elected, on the first Monday of the month of December following their election;” which is to say that their term of office shall not begin until then.

The proposition may be re-stated .as follows: No one may assume an office to which he has been elected without a commission from the Governor; no commission by the Governor may issue until thirty days after the election. Therefore no one elected to an office may enter upon the discharge of his duties until thirty days after his election. But to declare that an elected officer shall not enter upon the discharge of his duties until thirty days after such election, is the same as to say that his term of office shall not begin until then. Hence when the law provides that no commission shall issue to an elected officer until thirty days after his election, it provides unequivocally that the term of such officer shall not begin until thirty days after such election.

It follows therefore that the term of those police jurors who resigned began thirty days .after the general election of 1912; and that the terms of the police jurors to be elected in 1916 will begin thirty days after the general election of that year.

But inasmuch as regular terms of office follow in rotation, each succeeding the other without intermission (State ex rel. Wilkinson vs. Hingle, 124 La., 655) it necessarily follows that the term of a police juror extends from thirty days after his election until thirty days after the next general election, whereat his successor is to be chosen.

The next general election in this State is fixed by law for the Tuesday after the third Monday in April, 1916, *152that *is*to say, for Tuesday, April 18th, 1916; and thirty days thereafter will be May 18th, 1916. Hence when the police jurors elected in 1912, resigned their offices oii May 1st, 1915, the unexpired term thereby vacated ^as for more than a year and should have been filled by election.

Opinion and decree, November 8th, 1915.

Rehearing granted, November 24th, 1915.

We think the judgment appealed from correct, and it is therefore affirmed.

Judgment affirmed.

On Rehearing.

His Honor, EMILE GOD CHAUS,

rendered the opinion and decree of the 'Court, as follows:

It is claimed that the effect of our decision is to hold that a special law, fixing the end of the term of appointive police jurors, namely Act 119 of 1890, is repealed by a subsequent general law on the subject of elections, namely, Section 25 of Act 152 of 1898, which prescribes that no commission shall be issued within 30 days of the election. ✓

But this is not an accurate statement of the situation. For at the time when Act 119 of 1890 and the subsequent act providing for the election of police jurors, Act ■161 of 1894, were enacted, it was then the law, as it is now, that no commission could issue until 30 days after election and that it was a criminal offense to assume an office without the authority of a commission. Act 58 of 1877; Section 40; Act 41 of 1873. What we did hold and now maintain is that the Act of 1890 providing for the ap*153pointment, and the Act of 1894 providing for the election of police jurors, must be examined and construed in connection with the then existing laws in order to determine when the term of an elected police juror began and ended; and our conclusion was that since a police juror duly elected could not legally assume his office until at least 30 days after election, his term of office must necessarily begin on the latter date and not on the day of election.

And this view is in accord with that expressed and adopted by Justice Stephen J. Field, then Chief Justice of the Supreme Court of California, in a case quite similar to the one before us.

A statute of California prescribed that the Governor should appoint a District Judge to hold office “until the next general election, when a Judge shall be elected by the qualified voters of the district.” The question presented was whether under this statute, which employs the identical language adopted by our Legislature in Act 119 of 1890 and Act 161 of 1894, the term of the Judge thus elected began on the day of his election or subsequently, i. e., only after his commission had been issued and he had qualified. The Court concluded that the term commenced on the date of qualification and not on the day of election; and we quote the opinion at some length as it discloses that the laws of 'California prescribe the same requirements as do our own relative to the canvassing, publication, etc., of the returns of elections and the formalities to be observed before the successful candidate may legally assume his office:

> “A different rule would, prevail if the law had fixed the commencement of the term by the designation of a day certain; in that case the issuance of the commission and the time of the qualification would conclude nothing as' to the term. But not so where *154the commencement must depend upon certain preliminary proceedings to be taken by different officers. A new Judge cannot enter upon the discharge of his duties until the fact of his election is in some way officially determined, and authentic evidence of it furnished him. For this purpose the law prescribes certain steps following each other in regular order. The returns of the election are to be made from the different precincts to the County Clerk. After a certain interval these returns are to be opened and the vote counted. A statement of the votes of the district is then to be prepared, properly authenticated and forwarded to the Secretary of State. Upon this statement the Governor is to issue his commission, and within ten days after its receipt, the person elected is to take and subscribe the oath of office.

> “The Constitution requires this .oath to be taken and subscribed before the officer can enter upon the discharge of his duties and 'the Statute requires the oath to be endorsed upon his commission. Into these matters the Courts will not minutely inquire. It is sufficient for them in determining the commencement of any particular term .of office, where that is not ■fixed by the designation of a day certain, that the Statute requires a commission to issue to the officer, and his oath of office to be endorsed thereon, and leaves its issuance to the Governor without prescribing the period within which this shall take place. In such case we must look to the qualification of the officer to ascertain the date at which his term begins. ’ ’

> “Though it is true the right to an office is derived by election from the people, it is undoubtedly .competent for the Legislature to render the enjoyment .of the right dependent upon various conditions as to the ascertainment of the result of the election, the issuing of the commission and the qualification of the officer. When these conditions are imposed, the right *155to enter and enjoy, in other words, to hold the office, is not complete until they are satisfied. Until then, the term of the officer cannot begin to run.”

In a concurring opinion, Judge Baldwin, adverting to the po-int that an Act of 1853, which prescribed that all appointees should hold over until their successors had qualified, was repealed by implication by the Act of 1854, which provided that the appointee should hold his office until the next general election, said: '

> “There is no necessary conflict between the Act of 1854 and the general Act'of 1853. The last named act was intended to be general in its application. The Act of 1854 is silent .as to the time when the Judge elected at the general election should take office. The mere designation of the time of the election, and the provision that the appointee should hold until the election, do not necessarily restrict the holding to the day of the election, when we consider that a general act of the same subject exists, providing for the extension of the holding to the qualification of his successor. ’ ’

> “To work a repeal, the last act must be directly and irreconcilably inconsistent with the first; that is, reading both Acts together, effect cannot be given to both. But effect can in this matter be given to both. The consequence of the construction contended for by appellant would be to leave an interregnum in this important office which we cannot suppose was designed by the Legislators. It is unreasonable to suppose that the Legislature designed to fix the commencement of the term at an earlier period than that at which the incumbent could enter into the office. Some time must necessarily elapse before the person elected could get his commission and be ready to qualify.”

Brodie vs. Campbell, 17 California, 11.

*156Opinion and decree, December 20th, 1915.

And the observation of Justice Baldwin as to the intention of the Legislature is peculiarly applicable to the situation here presented. For if, as respondents contend, the term of a police juror is at an end on the very day of election, then every four years there must necessarily occur in each office of police juror throughout the State, a vacancy from the day of election of each police juror to the date of his qualification — a vacancy which quadrennially it would be the duty of the Governor to fill with his appointees.

State vs. Young, 137 La., ..; 68 Sou. Rep., 241.

Certainly nothing could have been more foreign to the intention of the Legislature when it discarded the appointive and adopted the elective system with respect to police jurors, than that every four years there must legally intervene a period or term of that office which could be filled by appointment.

We are satisfied as to the correctness of the conclusions heretofore reached, and accordingly the former .opinion and decree are reinstated and adhered to by the Court.

Former decree reinstated.