Ivy v. Lusk

Buchanan, J. The motion to dismiss the appeal in this ease, cannot pre [487] vail. Mr. Quarles is not a warrantor in the legal sense, although styled so in the pleadings in the district court. The pretensions of plaintiff, as well as those of defendant, to the office of Harbor Master, are not only independents of, but antagonistic to, those of Mr. Quarles. The case of Williams v. Courtney, 8th Ann. 68, has therefore no application. The true test of the necessary parties to an appeal is this: Has the party an interest that the judgment appealed from be maintained? As to Quarles, it is plain that such an interest does not exist in the present instance. The judgment of the court below was agáinst him, as well as against Ivy. Quarles has acquiesced in the judgment. Ivy alone has appealed. A reversal of the judgment, as between Ivy and Lush, can have no effect upon Quarles. His right to the office is notin question before us,,and even should we be of opinion that neither of the other parties has the legal right to the office, we could not award it to Quarles. We could do nothing more, in such a case, than dismiss the suit. In no event, could either of those parties have had any recourse against Quarles, had he even been made party to the appeal. He has therefore no interest in the success of either appellant or( appellee. The plaintiff and defendant both claim to have had, at the date of the institution of this suit, (November, 1853,) the legal right to the possession of the office of Harbor' Master of the First District of'New Orleans. . Each is holder of a commission under the broad seal of the State; that of plaintiff, signed by Governor Walker, bears date the 12th of March, 1852 ; and that of defendant, signed by Governor Hebert, is dated 8th of August, 1858. The term of office of the Harbor Master, by the Act of 8th March, .1841, is two years; and it is admitted on all sides, that Francis Quarles was the legally qualified incumbent of this office, up to the 25th of February, 1853, at which date his term of office expired, and that he was not reappointed. When Governor Hébert, therefore, appointed Mr. Lusk, in August, 1853, the office was vacant, unless the appointment of Mr. Ivy by Governor Walker, about a year before the expiration of Quarles' term, took effect from the, expiration of that term, as it was intended to do. But in the interval between the 12th of March, 1852, when Ivy was commissioned, and the 25th of February, 1858, when that commission was intended to take effect, a new State Constitution was adopted, and a new State Government organized, with a new Governor, and a new Legislature; and the only question which we deem it necessary to decide, is the legality of an executive appointment to office, under such circumstances, in anticipation of the vacancy of the office. The argument for the plaintiff is, that inasmuch as the Act of the Legislature creating this office of Harbor Master declares, that “ from and after the passage of this Act,” it shall be the duty of the Governor to nominate, and by and with the consent of the Senate, appoint three Harbor Masters for the port of New Orleans, who should “ hold their office for two years” ; therefore the term of this office has a day fixed by law for its commencement, to wit, the 8th of March, 1841, and the same day, every second year thereafter; and that inasmuch as under the Constitution of' 1845, the Legislature only sat biennially, and the year 1853, when Quarles' term of office would expire, was a year of legislative recess, it was proper, if not necessary, that the Governor should lay his nomination of Quarles' successor before the Senate, which was in session in 1852, the year previous to the vacancy of the office. [488] As to the 8th of March being the day fixed by law for the commencement of the term of office, we see nothing in the Act of 1841, which justifies such a conclusion. The practice of the government, as proved by the executive record in evidence, is, moreover, contrary to this theory; for we find therein that Qum'lea' commission, as already said, took effect from the 25th of February, 1851. And however specious the argument, that the Governor should, if possible, seek to avail himself of the assistance of his constitutional advisers, the Senate, in making appointments to office, and to avoid an independent nomination which would only have effect until the end of the next session of the Legislature, it is plain that an appointment thus made by anticipation, has no other basis than expediency and convenience, and can only derive its binding force and effect from the supposition that there will be no change of person, and consequently of will, on the part of the appointing power, between the date of the exercise of that power by anticipation, and that of the necessity for the exercise of such power by the vacancy of the office. But we hold it to be entirely inadmissible to pretend that the Governor and Senate can forestall the action of their own successors in office, upon executive appointments to other offices of which the term shall expire during their possession of the reins of government. Judgment of district court affirmed, with costs.