Berkshire, J.
This is the second time this case has been in this court. State, ex rel., v. Peelle, 121 Ind. 495.
When the case was first before the circuit court judgment was rendered for the appellee upon a demurrer to the complaint. From the judgment so rendered an appeal was prosecuted to this court.
In this court the judgment was reversed, and the cause remanded, with directions to the court below to overrule the demurrer to the complaint.
When the cause again came before the circuit court the appellee answered in two paragraphs.
The first paragraph was a special denial, and the second paragraph the general denial.
It would have been proper practice had the appellant filed a motion to strike out the first paragraph as an encumbrance to the record, notwithstanding there would have been no available error had such a motion been filed and overruled.
Several paragraphs of reply were filed to the first paragraph of answer, but regarding it as a mere denial of the allegations in the complaint, the reply becomes wholly without importance.
The cause being at issue was submitted to the court for trial, and a finding made thereafter for the appellee.
The appellant moved the court for a new trial, which motion the court overruled, and the proper exception was reserved.
Judgment was then rendered for the appellee, and from that judgment this appeal is prosecuted.
When the case was here the first time the whole contention was as to the power of the Legislature under the Constitution to designate the incumbent to the office in question.
The appellee rested his claim to the office upon an election by the Legislature, and the appellant’s relator relied upon an appointment from the executive of the State.
The appellee now claims title to the office by virtue of an [517]*517appointment from the executive of the State, while the appellant's relator assumes the same position as heretofore.
After the cause had been remanded to the court below, as the appellee had not yet addressed an answer to the complaint, he was not debarred from setting up by way of answer a different claim of title than the one already considered by this and the court below, if he in good faith believed he held any different title.
And the question now is, does the appellee hold the office in question by appointment from the executive department of the government?
As we now understand the position of the appellee, it is that he holds the office (1) by appointment from Governor Porter, and (2) by appointment from Governor Gray. . ,
' For two sufficient reasons the appellee received no appointment to the office in question from Governor Porter, the second of which applies with equal force to the action of Governor Gray :
First. At the time the appellee claims to have received his appointment from Governor Porter John B. Conner, Esq., was rightfully holding the office, and his term of office did not expire for one and one-half months thereafter. That the Governor could make no valid appointment under such circumstances it is only necessary to cite the well-considered case of State, ex rel., v. Harrison, 113 Ind. 434. But the contention is urged that even if the appointment was void when made, as Conner thereafter surrendered the office to the appellee, his appointment was thereby validated.
This position can not be maintained. The appointment being void at its inception, no act of the Governor could thereafter give it validity. It will hardly be expected that we take the time to cite authorities to support so plain a proposition. And it is sufficient to say that if the Governor could not validate his own void act Conner could not do so for him.
The surrender of the office by Conner to the appellee, we [518]*518think, amounted to an abandonment thereof and created a vacancy therein, but if there were any doubt as to this proposition both parties have so treated it, and for all the purposes of this case we are bound to so hold.
After the vacancy had been created the Governor was authorized to fill it by appointment, and could have appointed the appellee, and if this had been done the appellee would have held the office by virtue of the appointment then made, and not because of the commission issued to the appellee before Conner abandoned the office.
Upon the question that the surrender of an office by its rightful incumbent to one claiming title thereto without right, does not give to the latter title thereto, we refer to Turnipseed v. Hudson, 50 Miss. 429 (19 Am. Rep. 15).
The second reason why the appellee did not secure an appointment from the executive is that the appointing power lodged with him under the Constitution was never invoked in behalf of the appellee, and so long as it was not called into exercise there could be no appointment, although the Governor could at any time call it into action.
It appears that the General Assembly assumed (and it was but an assumption) to take from the executive department the power therein vested under the Constitution to designate the incumbent of the office in question, and not only so but to legislate the rightful incumbent of said office out of office before the expiration of his term, and to take unto themselves the election of an incumbent to said office, and as the result the General Assembly elected the appellee and gave him a certificate of election.
The first election occurred on the 3d day of March, 1883, and upon a certificate thereof being presented to the executive he issued the following commission :
“ The State of Indiana. To all who shall see these Presents,
Greeting:
“ Whereas, It has' been certified by the proper authority that, at a joint convention of the two Houses of the fifty-[519]*519third General Assembly, held in the hall of the House of Representatives, March 3d, 1883, that William A. Peelle, Jr., was elected Chief of the Bureau of Statistics.
“ Therefore, Know ye, that in the name and by the authority of the State aforesaid, I do hereby appoint and commission William A. Peelle, Jr., Chief of the Bureau of Statistics aforesaid, to serve as such for the term of two years from the 8th day of March, 1883, and until his successor .shall have been elected and qualified.
“ In witness whereof, etc.
“ By the Governor: Albert G. Porter.
“ W. R. Myers, Secretary of State.”
There was no pretence that the appellee held any other title to the office than that which the said election conferred Upon him, and when we remember the aggressive attitude of the General Assembly at that time with reference to its power to elect the incumbents to a large class of offices, including the one in question (and of this we take judicial knowledge), the appellee would not have been willing to have recognized the executive department as the source of his title. The Governor was careful to recite in the commission the nature of the appellee’s title and that he commissioned him as the chosen of the General Assembly.
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Berkshire, J.
This is the second time this case has been in this court. State, ex rel., v. Peelle, 121 Ind. 495.
When the case was first before the circuit court judgment was rendered for the appellee upon a demurrer to the complaint. From the judgment so rendered an appeal was prosecuted to this court.
In this court the judgment was reversed, and the cause remanded, with directions to the court below to overrule the demurrer to the complaint.
When the cause again came before the circuit court the appellee answered in two paragraphs.
The first paragraph was a special denial, and the second paragraph the general denial.
It would have been proper practice had the appellant filed a motion to strike out the first paragraph as an encumbrance to the record, notwithstanding there would have been no available error had such a motion been filed and overruled.
Several paragraphs of reply were filed to the first paragraph of answer, but regarding it as a mere denial of the allegations in the complaint, the reply becomes wholly without importance.
The cause being at issue was submitted to the court for trial, and a finding made thereafter for the appellee.
The appellant moved the court for a new trial, which motion the court overruled, and the proper exception was reserved.
Judgment was then rendered for the appellee, and from that judgment this appeal is prosecuted.
When the case was here the first time the whole contention was as to the power of the Legislature under the Constitution to designate the incumbent to the office in question.
The appellee rested his claim to the office upon an election by the Legislature, and the appellant’s relator relied upon an appointment from the executive of the State.
The appellee now claims title to the office by virtue of an [517]*517appointment from the executive of the State, while the appellant's relator assumes the same position as heretofore.
After the cause had been remanded to the court below, as the appellee had not yet addressed an answer to the complaint, he was not debarred from setting up by way of answer a different claim of title than the one already considered by this and the court below, if he in good faith believed he held any different title.
And the question now is, does the appellee hold the office in question by appointment from the executive department of the government?
As we now understand the position of the appellee, it is that he holds the office (1) by appointment from Governor Porter, and (2) by appointment from Governor Gray. . ,
' For two sufficient reasons the appellee received no appointment to the office in question from Governor Porter, the second of which applies with equal force to the action of Governor Gray :
First. At the time the appellee claims to have received his appointment from Governor Porter John B. Conner, Esq., was rightfully holding the office, and his term of office did not expire for one and one-half months thereafter. That the Governor could make no valid appointment under such circumstances it is only necessary to cite the well-considered case of State, ex rel., v. Harrison, 113 Ind. 434. But the contention is urged that even if the appointment was void when made, as Conner thereafter surrendered the office to the appellee, his appointment was thereby validated.
This position can not be maintained. The appointment being void at its inception, no act of the Governor could thereafter give it validity. It will hardly be expected that we take the time to cite authorities to support so plain a proposition. And it is sufficient to say that if the Governor could not validate his own void act Conner could not do so for him.
The surrender of the office by Conner to the appellee, we [518]*518think, amounted to an abandonment thereof and created a vacancy therein, but if there were any doubt as to this proposition both parties have so treated it, and for all the purposes of this case we are bound to so hold.
After the vacancy had been created the Governor was authorized to fill it by appointment, and could have appointed the appellee, and if this had been done the appellee would have held the office by virtue of the appointment then made, and not because of the commission issued to the appellee before Conner abandoned the office.
Upon the question that the surrender of an office by its rightful incumbent to one claiming title thereto without right, does not give to the latter title thereto, we refer to Turnipseed v. Hudson, 50 Miss. 429 (19 Am. Rep. 15).
The second reason why the appellee did not secure an appointment from the executive is that the appointing power lodged with him under the Constitution was never invoked in behalf of the appellee, and so long as it was not called into exercise there could be no appointment, although the Governor could at any time call it into action.
It appears that the General Assembly assumed (and it was but an assumption) to take from the executive department the power therein vested under the Constitution to designate the incumbent of the office in question, and not only so but to legislate the rightful incumbent of said office out of office before the expiration of his term, and to take unto themselves the election of an incumbent to said office, and as the result the General Assembly elected the appellee and gave him a certificate of election.
The first election occurred on the 3d day of March, 1883, and upon a certificate thereof being presented to the executive he issued the following commission :
“ The State of Indiana. To all who shall see these Presents,
Greeting:
“ Whereas, It has' been certified by the proper authority that, at a joint convention of the two Houses of the fifty-[519]*519third General Assembly, held in the hall of the House of Representatives, March 3d, 1883, that William A. Peelle, Jr., was elected Chief of the Bureau of Statistics.
“ Therefore, Know ye, that in the name and by the authority of the State aforesaid, I do hereby appoint and commission William A. Peelle, Jr., Chief of the Bureau of Statistics aforesaid, to serve as such for the term of two years from the 8th day of March, 1883, and until his successor .shall have been elected and qualified.
“ In witness whereof, etc.
“ By the Governor: Albert G. Porter.
“ W. R. Myers, Secretary of State.”
There was no pretence that the appellee held any other title to the office than that which the said election conferred Upon him, and when we remember the aggressive attitude of the General Assembly at that time with reference to its power to elect the incumbents to a large class of offices, including the one in question (and of this we take judicial knowledge), the appellee would not have been willing to have recognized the executive department as the source of his title. The Governor was careful to recite in the commission the nature of the appellee’s title and that he commissioned him as the chosen of the General Assembly. That it was the purpose and intention of the Governor, when he issued the commission, to deliver to the appellee the evidence of his title as derived from the Legislature, and to make it distinctly appear that he was in no sense the appointee of the executive, is so manifest that there is no ground for a contrary contention to rest upon. But in addition to what appears on the face of the commission; the records of the executive office disclose the fact that the commission was issued to the appellee because and on account of his election by the General Assembly. We know of no sufficient reason why these records are not competent evidence. They are the records kept in a public office of the official acts of the chief executive officer of the State. [520]*520But see Marbury v. Madison, 1 Cranch, 137. But it still further appears that after the appellee received his commission from Governor Porter he recognized the Legislature, and not the executive, as the source from which he derived title to the office.
The following is the oath which was administered to him and endorsed on his commission :
“State of Indiana, Marion County, ss. :
“I, William A. Peelle, Jr., do solemnly swear that I will support the Constitution of the United States and of the State of Indiana, and that I will honestly and faithfully discharge my duties as Chief of the Bureau of Statistics, for the term for which I have been elected, to the best of my ability, so help me God. William A. Peelle, Jr.
“ Subscribed and sworn to before me this 9th day of March, 1883. S. P. Sheerest, Clerk Supreme Court.”
But it is contended that by some kind of legal fiction the appellee, each time he was commissioned by the Governor, became his appointee.
This contention is not very clearly defined, but proceeds, as we understand it (in part, at least), upon the theory that all persons are presumed to know the law, and that this presumption applies as well to public officers as to individuals; and, as Governors Poi'ter and Gray are presumed to have known, when they commissioned the appellee, that the General Assembly had no power to elect him to the office, that the presumption must prevail that they intended by their official acts in commissioning him to appoint him to the office, and that this presumption must prevail, over their expressed intention to the contrary; or, to express the contention in other language, though they intended by their official acts to do one thing, and, in fact, did what they intended, that in law they did something else. This is carrying the doctrine of presumptions beyond precedent, and, we think, beyond reason.
For some purposes the presumption contended for prevails, [521]*521but it is never applied to a question such as we now have under consideration.
It is usually recognized in the construction of contracts, and the enforcement of penal statutes; but we know of no case where it has been allowed to give to the official act of a public officer a different legal effect than the act itself expressly declares was intended. See Citizens, etc., Savings Ass’n v. Friedley, 123 Ind. 143.
On the 9th day of February, 1885, the Legislature again elected the appellee to the office in question, and thereafter, upon a certificate of election, the Governor issued to him a commission.
In 1887 there was no election, and the appellee continued to hold the office until 1889, when the Legislature again elected him to the office, and on presentation of bis certificate of election to the Governor, a commission was refused, and the Governor having appointed the appellant’s relator and commissioned him, this controversy arose.
The following is the appellee’s commission from Governor Gray:
“The State of Indiana, To all who shall see these presents, Greeting:
“'Whereas, It has been certified to me by the proper authority that William A. Peelle,. Jr., has been elected to the office of chief of the bureau of statistics, of the State of Indiana, by the General Assembly on the ninth day of February, A. D. 1885.
“ Therefore, Know ye, that in the name and by the authority of the State aforesaid, I do hereby commission the said William A. Peelle’, Jr., as said chief of the bureau of statistics of the State of Indiana for the term of two years from the eighth day of March, 1885, and until his successor shall have been elected and qualified.
“ In witness whereof, etc.
“ By the Governor: Isaac P. Gray.
“ William R. Myers, Secretary of State.”
[522]*522We have nothing to add with reference to Governor Gray’s action, except to say that he seemed to be more careful, if possible, than his predecessor to emphasize the fact that the appellee was not his appointee, but was commissioned as the chosen of the General Assembly. The word “appoint” is found in the commission issued by Governor Porter, but nowhere appears in that of Governor Gray.
But the further contention of the appellee is, that as the appointing power was lodged with the executive of the State, his purpose or intention in commissioning the appellee can not be inquired into ; that notwithstanding the purpose is disclosed in the face of the commission, all of its recitals must be disregarded, and the commission treated as an appointment made by the executive. Much that we have already said is here applicable.
This is but contending for a conclusive presumption that you must take an officer to mean one thing when he does another.
As the appointing power was lodged in the executive when he commissioned the appellee, had the commission recited an appointment, or had it been silent as to the source of the appellee’s title to the office, then no doubt the commission would have been conclusive, for the very good reason that the mental operations of the Governor’s mind, unexpressed in the act, could not be inquired into, and if for no other reason such inquiry would be impracticable. But where the source of title is lodged somewhere else than with the executive, his commission is only prima facie evidence of title. Board, etc., v. State, ex rel., 61 Ind. 379; Reynolds v. State, ex rel., 61 Ind. 392; Hench v. State, ex rel., 72 Ind. 297; State, ex rel., v. Chapin, 110 Ind. 272; Marbury v. Madison, supra.
This court has gone so far as to hold that even after the Governor has issued a commission, if it appears that he has commissioned a wrongful claimant, to the prejudice of one [523]*523who is rightfully entitled to the office, he may issue the second commission. Gulick v. New, 14 Ind. 93.
Filed May 15, 1890;
petition for a rehearing overruled Sept. 17, 1890.
The same reasons which make the Governor’s commission conclusive, when silent as to the source of title, that the person commissioned is the Governor’s appointee, where he has the power to appoint an incumbent to an office, render his commission conclusive that such person is not his appointee when it recites that the person commissioned derives his claim of title because of an election by the people or Legislature, and is commissioned because thereof.
We hold that when the appellant’s relator was appointed there was a vacancy in the office, which the Governor was empowered to fill by appointment until there should be an election by the people.
• Judgment reversed, with costs.