Taliaeb.ro, J.
William. B. Kemp and Ezekiel P. Ellis contend for the office of District Judge of the Sixth Judicial District of the State. Each claims to be legally entitled to the office. Each claims to h°gj^ been duly elected to that office at the general election held on tüo fourth of November, 1872, and each presents a commission purporting to have been issued under the authority of the State, but by different persons acting at different times as Governor of the State.
This proceeding was commenced in the parish of Tangipahoa, and what adds to the complications presented there are two persons claiming the office of Parish Judge of that parish, C. J. Bradley and J. W. Addison. The contestants for the office of District Judge severed in their recognition of a legal parish judge.
Kemp presented in that parish a petition addressed to the judge of the Sixth Judicial District setting up his title to that office and prayed that Ellis be cited' to show cause why the petitioner should not be declared entitled to the office and to be inducted into it. Upon this petition he rendered an order recusing himself and referring the case to C. J. Bradley as parish judge for investigation and decision. This order was rendered on the tenth of February, • 1873. On the second of January previously a suit was insituted in the parish' of St. Helena, one of the parishes of the Sixth Judicial District, by the attorney of the District, against Kemp, praying that he be declared an usurper, and that Ellis be declared legally entitled to the office of district judge.
About the same time a similar action was brought in the parish of Tangipahoa against Bradley in the interest of Addison, claiming to be the lawful parish judge of that parish. This suit was brought in the District Court, and in pursuance of the prayer of the petition, Ellis acting as district judge, granted an injunction against Bradley, prohibiting him from discharging the duties of parish judge. In this state of affairs, on the eighth of March, Kemp filed in the Superior Court- of [254]*254the parish of Orleans, an application under the act of the Legislature-approved the fifth of March, 1873, numbered 39, to regulate proceedings in contestations between persons claiming judicial office, to have his case against Ellis transferred to that court.
An order was accordingly rendered by the Superior Court, addressed to Bradley as parish judge of Tangipahoa, directing him to transfer the case, which was accordingly done under an order rendered by him on-the eighth of March, 1873. When the case was opened in the Superior Court, the defendant filed a motion to rescind the orders and proceedings under which the transfer of the case was made, alleging as grounds in support of this motion that the provisions of said act No. 39 for transferring causes is repugnant to articles 83 and 90 of the State constitution; that the plaintiff’s order recusing himself and transferring the case to C. J. Bradley, as parish judge, was null and of no effect, because, by the plaintiff’s own showing, he was not at that time the acting district judge of the district; that he could make no _o-’'der in his own case affecting the rights of the defendant; that the -efal parish judge of Tangipahoa was not incompetent to try the-case; that C. J. Bradley was not at the time he made the order of transfer the apting parish judge of the parish of Tangipahoa, and could., not take cognizance of the proceeding in any manner.
The defendant also excepted on various grounds to any action being taken in the case by the Superior Court. He alleges that that court has no jurisdiction ratione materiw or ratione personal, the parties and the subject matter being without the limits of the parish of Orleans, and that the act No. 39, of July 15, 1873, in that respect violates article 83 of the constitution; that it is in violation of article 114 of the constitution, as the different objects embraced in the act are not set out in its title; that it is an ex post facto law; that the same suit for the same object and between the same parties is now pending in. the district court of the parish of St. Helena, and he therefore pleads Us pendens. In his answer to the merits, the defendant alleges that at the general election held on the fourth of November, 1872, he was-duly elected district judge of the Sixth Judicial District, and in pursuance thereof he was regularly commissioned by the Governor of the State, and qualified under that commission by filing his oath of office with George E. Bovee, Secretary of State.
On hearing the case in the court below the judge rendered judgment in favor of the plaintiff and the defendant has appealed. The exception taken by the defendant to the legality of the transfer of the cause-will first be considered. Article 112 of the State Constitution provides that “ the General Assembly shall provide by law for all change of venue in civil and criminal cases.” The principle on which a change of venue is accorded, either in civil or criminal cases, is [255]*255grounded in considerations of public policy to secure to parties whose' rights are at stake in legal controversies a fair and impartial trial. At the domicile of the parties it not unfrequently happens that partialities exists in the public mind in favor of one of tlie litigants and undue prejudices against the other. One of them through the advantages of wealth, family connections, popularity, or a predominance of political feeling, or some other adventitious circumstance, might have a controlling influence in his own vicinity which would place his adversary at great disadvantage in a contest with him at law. Hence a party-litigant on making a declaration under oath that, from any sufficient-cause specially set forth he fears he would be unable to obtain a fair trial, may obtain a change of venne. Revised Statutes, p. 760. The act No. 39 of March 5,1873, to obviate the difficulties that would ensue from an inability arising from any cause to obtain a decision of a controversy for a judicial office, provides against such a contingency.
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Taliaeb.ro, J.
William. B. Kemp and Ezekiel P. Ellis contend for the office of District Judge of the Sixth Judicial District of the State. Each claims to be legally entitled to the office. Each claims to h°gj^ been duly elected to that office at the general election held on tüo fourth of November, 1872, and each presents a commission purporting to have been issued under the authority of the State, but by different persons acting at different times as Governor of the State.
This proceeding was commenced in the parish of Tangipahoa, and what adds to the complications presented there are two persons claiming the office of Parish Judge of that parish, C. J. Bradley and J. W. Addison. The contestants for the office of District Judge severed in their recognition of a legal parish judge.
Kemp presented in that parish a petition addressed to the judge of the Sixth Judicial District setting up his title to that office and prayed that Ellis be cited' to show cause why the petitioner should not be declared entitled to the office and to be inducted into it. Upon this petition he rendered an order recusing himself and referring the case to C. J. Bradley as parish judge for investigation and decision. This order was rendered on the tenth of February, • 1873. On the second of January previously a suit was insituted in the parish' of St. Helena, one of the parishes of the Sixth Judicial District, by the attorney of the District, against Kemp, praying that he be declared an usurper, and that Ellis be declared legally entitled to the office of district judge.
About the same time a similar action was brought in the parish of Tangipahoa against Bradley in the interest of Addison, claiming to be the lawful parish judge of that parish. This suit was brought in the District Court, and in pursuance of the prayer of the petition, Ellis acting as district judge, granted an injunction against Bradley, prohibiting him from discharging the duties of parish judge. In this state of affairs, on the eighth of March, Kemp filed in the Superior Court- of [254]*254the parish of Orleans, an application under the act of the Legislature-approved the fifth of March, 1873, numbered 39, to regulate proceedings in contestations between persons claiming judicial office, to have his case against Ellis transferred to that court.
An order was accordingly rendered by the Superior Court, addressed to Bradley as parish judge of Tangipahoa, directing him to transfer the case, which was accordingly done under an order rendered by him on-the eighth of March, 1873. When the case was opened in the Superior Court, the defendant filed a motion to rescind the orders and proceedings under which the transfer of the case was made, alleging as grounds in support of this motion that the provisions of said act No. 39 for transferring causes is repugnant to articles 83 and 90 of the State constitution; that the plaintiff’s order recusing himself and transferring the case to C. J. Bradley, as parish judge, was null and of no effect, because, by the plaintiff’s own showing, he was not at that time the acting district judge of the district; that he could make no _o-’'der in his own case affecting the rights of the defendant; that the -efal parish judge of Tangipahoa was not incompetent to try the-case; that C. J. Bradley was not at the time he made the order of transfer the apting parish judge of the parish of Tangipahoa, and could., not take cognizance of the proceeding in any manner.
The defendant also excepted on various grounds to any action being taken in the case by the Superior Court. He alleges that that court has no jurisdiction ratione materiw or ratione personal, the parties and the subject matter being without the limits of the parish of Orleans, and that the act No. 39, of July 15, 1873, in that respect violates article 83 of the constitution; that it is in violation of article 114 of the constitution, as the different objects embraced in the act are not set out in its title; that it is an ex post facto law; that the same suit for the same object and between the same parties is now pending in. the district court of the parish of St. Helena, and he therefore pleads Us pendens. In his answer to the merits, the defendant alleges that at the general election held on the fourth of November, 1872, he was-duly elected district judge of the Sixth Judicial District, and in pursuance thereof he was regularly commissioned by the Governor of the State, and qualified under that commission by filing his oath of office with George E. Bovee, Secretary of State.
On hearing the case in the court below the judge rendered judgment in favor of the plaintiff and the defendant has appealed. The exception taken by the defendant to the legality of the transfer of the cause-will first be considered. Article 112 of the State Constitution provides that “ the General Assembly shall provide by law for all change of venue in civil and criminal cases.” The principle on which a change of venue is accorded, either in civil or criminal cases, is [255]*255grounded in considerations of public policy to secure to parties whose' rights are at stake in legal controversies a fair and impartial trial. At the domicile of the parties it not unfrequently happens that partialities exists in the public mind in favor of one of tlie litigants and undue prejudices against the other. One of them through the advantages of wealth, family connections, popularity, or a predominance of political feeling, or some other adventitious circumstance, might have a controlling influence in his own vicinity which would place his adversary at great disadvantage in a contest with him at law. Hence a party-litigant on making a declaration under oath that, from any sufficient-cause specially set forth he fears he would be unable to obtain a fair trial, may obtain a change of venne. Revised Statutes, p. 760. The act No. 39 of March 5,1873, to obviate the difficulties that would ensue from an inability arising from any cause to obtain a decision of a controversy for a judicial office, provides against such a contingency. Section third of that aet provides that “in case of recusation or inability from any cause whatever the judge or judges of the parish or district wherein the persons so contesting shall reside shall be unable to act, then and in that case the plaintiff in said rule may take said-rule before the judge of the adjoining parish or judicial district, or to the Superior Court at New Orleans, as be may deem advisable, and in-cases now pending in wbioli contestation between persons claiming judicial office is the subject matter at issue, either party shall have the right to have his cause removed to the adjoining parish or judicial-district, or to the Superior Court at New Orleans, upon application to the judge of any adjoining parish or judicial district, or Superior Court at New Orleans, and affidavit of the recusation or inability of the judge to act from any legal cause, and upon the party filing- said application and affidavit, the court shall by order direct the removal of such cause, and the record shall thereupon be transferred to the said court; and in case of inability on the part of the party applying to obtain said record, or a duly certified copy thereof, sworn copies of the record may be filed with the court, and the ease shall thereupon he tried in same manner as if the original record was with the court;provided, that before any case so removed at the instance of any party shall be proceeded with, the court making the removal shall require-that the adverse party shall have twenty-four hours’ notice, With an additional twenty-four for every ten miles his place of residence may bo from the court-.”
The plaintiff, as we have seen, filed a suit in the District Court of the parish of Tangipahoa, in the Sixth Judicial District, on the tenth of Eebruary, 1873, setting up claim to the office of district judge of' that district. He brought this action under the act No. 39 of fifteenth of January, 1873. He entered an order recusing himself, and referred. [256]*256the matter for decision to C. J. Bradley, as parish judge of the parish of Tangipahoa.' A suit under the intrusion act had previously been instituted in the interest of Addison, claiming the office of parish judge of that parish, and in that suit Ellis had rendered an order on the third of January, 1873, granting an injunction prohibiting Bradley from discharging the duties of parish judge of the parish of Tangipahoa. This fact was alleged and sworn to by the plaintiff in his motion before the Superior Court to have the cause transferred to that court. He might have had, for aught that appears, valid objections to having -the case instituted against him under the intrusion act in the interest of his competitor, tried before the parish judge of the parish of St. Helena; at all events that suit did not prevent him from resorting to a different form of action in his own case, and that form which is specially presented by law for the decision of contestations for judicial offices.
Each of these contestants charges that the other is devoid of legal ■right to the office in controversy.
Kemp sets forth in his petition that the defendant, Ellis, “assumes to exercise the duties and functions of district judge of the said Judicial District of Louisiana wrongfully, illegally and in contravention of the rights of this petitioner as herein set forth, pretending and ■claiming to be the judge of said district,” etc.
In the intrusion suit of Ellis against Kemp it is alleged that “William Breed Kemp, of St. Helena parish, has unlawfully set up claim and title to said office, and has usurped and intruded into the same without the shadow of an honest or legal title.” The petition prays that “he be decreed to be an intruder and usurper, and perpetually excluded from said office,” etc. Each of the parties swears to the truth of the allegations in their pleadings.
The parish judge of St. Helena to whom the case of Ellis v. Kemp was referred, granted an order that an injunction issue as prayed for, restraining Kemp from acting or assuming to act as judge of said district.
We conclude that the plaintiff had the right to have the case transferred.
The next inquiry is had C. J. Bradley the right to render the order of transfer?
And now, under the confused state of litigation that appears to exist •in that judicial district in relation to judicial offices, and the contradictory evidence we find in the record, to enable us to decide the question it becomes necessary for us to determine incidentally which of the two claimants of the office of parish judge of the parish of Tangipahoa had prima facie the right to render the order of transfer. Each of these parties, like the contestants for the district judgeship, presents a commission. The commission of Addison is dated December 4,1872, [257]*257and was issued by Governor Warmoth. Bradley holds the commission ■of Governor Kellogg, dated twenty-fourth January, 1873. We have several times decided that the Warmoth commissions that were issued like the one in the present case, before the general election returns were ■reported and promulgated by the returning officers for the State, are null and void. Bradley, therefore, holding a commission, regular and legal on its face, must be considered as prima facie entitled to the office, .and therefore that he had the right to render the order of transfer.
On the merits the case is to be disposed of under the provisions of the law enacted on the fifth of March, 1873, number 39. The question then is which of the contestants holds the legal and valid commission ? The defendant’s commission was issued by Governor Warmoth on the fourth day of December, 1872, before the general election returns had been officially made out and promulgated as required by law, and before he could legally issue a commission. The court, as was said in the case of Collin v. Knoblock, lately decided, will take judicial cognizance of that irregularity which renders the issuing of a commission null and void, as having been done in contravention of positive law.
The plaintiff holds the commission of Governor Kellogg, issued on the twenty-fourth of January, 1873.
This commission bears prima facie evidence of its genuineness and validity, and nothing to the contrary being shown, must be recognized as having legal force. The reasons assigned in the case of Collin v. Knoblock apply in the general to this case. It becomes unnecessary to pass upon the various bills of exceptions found in the record.
It is therefore ordered, adjudged and decreed that the judgment of the Superior Court be affirmed with costs.