The opinion
Taliaferro, J.
This is a suit brought under the intrusion act, in the name of John M. Bonner, alleging that at the general election held in November, 1872, he was elected Judge of the Fourth District Court, of New Orleans, having received a plurality of the votes polled for that office, there having been three candidates, T. J. Cooley, B. L. Lynch, the defendant, and himself. That notwithstanding he was duly elected to said office and commissioned by Ii. C. Warmoth, Governor of the State, the defendant has intruded into and taken possession of the said •office, and is unlawfully holding and exercising the duties thereof. -He prays to be recognized as Judge of said Fourth District Court, and to be put into possession of the same; that the defendant be decreed an usurper of that office and his pretensions thereto be rejected and not allowed.
The defendant excepted to the proceeding taken against him by the relator on several grounds, among which are the following:
That tho relator shows no cause of action; that the matters alleged are not of judicial cognizance; that the contesting of votes is not a judicial function, and the court is without jurisdiction ratione materiw ; that the statute under which the relator aims to proceed dors not .embrace his case; that he is therefore without a standing in court.
The defendant answered by a general denial. He alleges that he was duly elected to the office claimed by the relator, and returned elected by John Lynch, James Longstreet and George E. Bovee, the board of returning officers, and in pursuance thereof that he was duly ■commissioned by the Acting Governor, P. B. S. Pinchback.
The exceptions were sustained and the suit dismissed. The relator 'has appealed.
The relator shows a commission from Governor H. C. Warmoth, *268 dated tlie thirtieth of November, 1872. The defendant produces a commission from Acting Governor Pinehback, dated the sixteenth of December, 1872.
We decided in the case of ELennard v. Morgan, and again in the case’ of Hughes v. Pipkin, that the board of returning officers composed of John Lynch, George E. Bovee, James Longstreet and Jacob Hawkins, was the legal returning board of the State at the late November election. That board, it appears, returned the' defendant, Lynch, as-elected judge of the Fourth District Court of New Orleans, and upon, that return the Acting Governor issued a commission to him according to law. One holding an office under such a commission can not be-said to have intruded into or to unlawfully hold the office. But it is-said that the returns are only prima facie proof of the results of the election. That is true. The question, however, as to the election o^ officers is a political question, and courts of justice have jurisdiction-over them only so far as the political department may have authorized them to exercise jurisdiction. If there were no statute authorizing the trial of contested election cases before courts, they would be without authority to do so. 13 An. 90.
No statute conferring upon the courts the power to try cases of contested elections or title to office authorizes them to revise the action of the returning board. If we were to assume that prerogative, we-should have to go still further, and revise the returns of the supervisors of elections, examine the right of voters to vote, and, in short, the courts would become in regard to such cases mere offices for counting, compiling and reporting election returns. The Legislature has seen proper to lodge the power to decide who has or has not been elected in the returning board. It might have conferred that power upon the courts, but it did not. Whether the law be good or bad, it it is our duty to obey its provisions, and not to legislate.
The only power the courts have under the intrusion into office law is to decide if one or neither of the contestants has a legal title to the office, and the commission of each is the evidence of that. It is alleged in the relator’s petition that B. L. Lynch was returned as elected to the office of Judge of the Fourth District Court, and that he was commissioned by the Governor. Having no power to revise the action of the board of returning officers, we have nothing to do with the reasons, or grounds upon which they arrived at their conclusion.
Admitting everything alleged in the petition to be true, it appears that B. L. Lynch was returned by the legal returning, board as liavingbeen duly elected Judge of the Fourth District Court of New Orleans, and commissioned thereupon by the acting Governor of the State, and, therefore, it is shown that the petition discloses no cause of action.
For these reasons, and for those we have given more at large in the. *269 •case of Collin v. Knoblock, just decided, we think the defendant entitled to judgment in his favor. It is therefore ordered, adjudged and ■decreed that the judgment of the District Court be affirmed with costs.