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-third 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 : W. R. MYERS, Secretary of State." ALBERT G. PORTER. There was no pretense 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. 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 Porter 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. 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 his 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: WILLIAM R. MYERS, Secretary of State." ISAAC P. GRAY. We 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, 1 Cranch 137. 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 who is rightfully entitled to the office, he may issue the second commission. Gulick v. New, 14 Ind. 93. 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. ELLIOTT, J., and MITCHELL, Ch. J., dissenting. As to the power to appoint to fill vacancies, see Fritts v. Kuhl, 51 N. J. L. 191, and People v. Ward, 107 Cal. 236 infra. In most states the legislature may itself appoint to office. People v. Freeman, 80 Cal. 233; People v. Mayor, 15 Md. 376; People v. Bennett, 54 Barb. 481. 2. How Exercised. PEOPLE EX REL. BABCOCK V. MURRAY. Court of Appeals of New York. September, 1877. ALLEN, J. At the time of the expiration of the term of office of the defendants in 1873, the power to appoint their successors was in the mayor of the city of Lockport, and the assent or approval of the common council was not required, and all acts of the common council in affirming any nomination to the office, or ratifying the action of the mayor in making an appointment, were nullities. Laws of 1870, ch. 175, sec. 2; People v. Gates, 56 N. Y. 387; Same v. Fitzsimmons, 68 id. 514. The learned judge by whom the action was tried has found as a fact "that in the month of April, 1873, the relators were duly appointed to the office of excise commissioners of the city of Lockport in place of the defendants," and to this finding there is an exception as not only not warranted by, but as against evidence. The evidence discloses the fact, which is undisputed, that the only action of the mayor was a verbal nomination of the relators to the common council for appointment to the office. The vote of the common council and the record of their action upon the nomination must be laid out of view as ultra vires, and without efficiency. They add nothing to the verbal declaration and statement of the mayor, and the claim is that such nomination was a verbal appointment of the persons named to the office, the completed act of the mayor making the appointment; that an appointment by parol without writing is a valid exercise of the power to appoint, and this proposition must be sustained or the respondents cannot hold their judgment. In the People v. Fitzsimmons we held, with considerable hesitation and not without great doubts, that a nomination of the mayor of Albany to the common council of that city, and for their action, of individuals for office under the same statute, in writing, signed by the mayor officially and filed with the clerk of the common council, in the absence of any statute prescribing the form of the appointment or of the commission to be issued, followed by the taking of the oath of office by the persons named before the mayor, was a sufficient appointment by the mayor under the statute. No stress was laid upon the action of the common council. The paper writing signed by the mayor officially, although addressed to the common council and in the form of a nomination of the persons to that body, was an official appointment to the office by the mayor, and a substantial compliance with the statutes. There is no color in the opinion, or in any statute of this State, or any custom or usage of which we have knowledge, for claiming that an appointment to any civil office can be made verbally or without a proper writing evidencing the fact. It would be unfortunate if the title to office of one upon whose official acts public interests and private rights hinged, did or could be made to depend upon the verbal declarations and statements of the persons having the power to make the appointment, to be proved by parol and liable to be forgotten, misunderstood or misreported, subject to all the contingencies and infirmities which are incident to verbal evidence, or evidence by parol, so pregnant of mischief and misfortune as to have led to the enactment of the statute of frauds. It will not be presumed that the Legislature, while making void contracts involving trifling pecuniary interests unless evidenced by some writing, intended that important civil offices should be conferred without a commission or any writing, but simply by a |