Minot v. King , 4 Teiss. 312 ( 1907 )

MOORE, J.

This is a rule srived out by the appellant in an appeal taken since ,the 1st January, 1907, from a judgment rendered by the Civil District Court for the Parish of Orleans, m a suit in which the amount involved is less than five hundred dollars, to test the right of the clerk of this Court to charge as his compensation for filing the record of appeal herein, the sum of fifteen dollars.

The contention of mover is that the clerk may not lawfully exact a fee of more than five dollars for filing the record of appeal in any case appealable to this Court, forasmuch as the amendment to the fourth paragraph of Article 131 of the Constitution, adopted at .he Congressional election held in this State November 6th, 1906, fixes the fee for filing the record of appeal in each case at this latter sum.

The amendment referred to provides, inter alia; that:

Until otherzvise provided by law xxxxx the costs of filing same (appeals returnable to this Court) shall not exceed five dollars.”

Sec. 6 of XXXIII Amend’t Con. Act No. 137 of 1906 P. 227.

It may not be doubted that if this paragraph constituted the sole reference to this subject matter to be found in the Constitution, and if there exists no statute fixing and regulating .such fees, the argument of- the mover would be persuasive and would, therefore, have to be admitted.

But is it true that this is the sole reference made on the subject by the Constitution; and is it true that there exists no law fixing such fees?

The sixth paragraph of Art. 131 of the Constitution provides that:

“There shall be a clerk of said Court of Appeal (Court of Appeal for the Parish of Orleans) who shall be elected by the qualified voters of said Parishes, (the Parishes within its territorial district) for a term of four years; he shall he entitled to charge and retain as his compensation such fees as may be allowed by lave.” ■

Art. 154 provides that:

“Until otherwise provided by law the costs to be paid clerks, sheriffs, constables, recorder of mortgages and register of conveyances, shall be as now fixed, except that in no case shall the cost of filing appeals from, the City Courts exceed the sum of five dollars,” and

Art. 325 declares:

“That all laws in force in this State, at the time of the adoption of this Constitution, not inconsistent therewith, and Constitutional when enacted, shall remain in full force and effect until altered or repealed by the General Assembly, or until they expire by limitation .”

These several constitutional provisions, in order to ascertain the true meaning and intent of the particular paragraph under discussion, must be read together and construed under the guidance of that cardinal canon of interpretation which requires that all parts of an instrument must be construed together with a view to give effect to every part and to harmonize all the parts into uniformity.

As said in State ex rel Patton et als 32 A. 1200-1206: “When the articles of a constitution are subject to judicial analysis and for criticism, Courts of justice are to be guided by the rules which the wisdom of men has prudently established and cautiously applied in the interpretation cf all instruments, whether of a general or local, public or private character, whether intended to regulate the intercourse of nations, states, corporations or individuals among themselves. 1

The most important and salutory of these rules is, that the whole instrument must first he attentively surveyed; and that the purpose and intention of its authors must next be diligently searched, gathered and deduced from the entire context so as to make all the parts appear and prove rational, harmonious, effiicacious and uniformly conducive towards the practical accomplishment of the objects in view.”

Read in the light of all these constitutional provisions it is manifest that this constitutional amendment relegated to the legislative department of government the fixation of the fees of the clerk of this Court, and that the fixation of the clerk’s fees at five dollars by the amendment of paragraph 4 of Art. 131 is but conditional and contingent, its operative effect depending upon the non-existence of expression of legislative will concerning such fees.

If, therefore, there is extant any law fixing the fee which the clerk may “be entitled to charge and retain as his compensation” for filing records of appeals in appeals from the District Courts of the Parishes within the territorial jurisdiction of this Court and returnable to us, then the contingency upon which the constitutional fixatidn of these fees is made to depend, does not exist, and, as a consequence, the statutory regulation thereof, and not the conditional and contingent constitutional fixation of these fees, prevails: There is such statute. Sec. 7 of Act 136 of 1880 provides:

“That in all cases appealed to the Court of Aopeal for the Parish of Orleans, the following charges sha" be made, and no more:

First — In all cases where the amount involved is less than . $500.00, exclusive of interest $15.00; second — in all others $25.00.

It is argued, however, that the amendment to par 4 Art. 131 Con, supra, contemplates the abrogation of, and does in fact abrogate all statutory enactments of date prior to the 1st of January, 1907, concerning the fixing of the clerk’s fees, and that the purpose of the amendment was to maintain the fee at five dollars until subsequent legislation might otherwise provide.

As we have said, it is manifest that the amendment referred to clearly conveys the idea that to the legislative department property belongs the duty of fixing and regulating such fees, and, when this paragraph is read into, and construed with Art. 131, supra, which declares that the clerk “shall be entitled to charge and retain as his compensation such fees as may be allowed by law,” and with Art. 154 which provides that the said fees “shall! be as now fixed,” it is equally manifest that the fee as fixed by the amendment is to so remain, only in the absence of a law otherwise providing, whether such law presently exists or may be thereafter enacted.

Nor is there wanting evidence that a similar construction was p<ut upon this amendmenit by the General Assembly which framed the joint resolution submitting this amendment to the people for adoption.

Section 5 of the joint resolution, which joint resoultion originated in the House, purported an amendment of Art. 106 of the Constitution. As it passed the House and as reported to the Senate, it contained this clause: “The costs of appeal in any case appealed to the Courts of Appeal shall not exceed five dollars.” This, if permitted to stand, would have applied to this as well as to the Courts of he first and second circuits. Realizing, however, that in the first and second circuits, the clerks of the district Courts in the Parishes where the Court of Appeal may hold its session are made ex-officio clerks of the Court of Appeal, whereas for the Court of Appeal for the Parish of Orleans an independent clerk is elected, whose only revenue, as such, is the fees to be charged for filing appeals to this Court, the Senate amended the joint resolution by inserting, after he word “appeal,” the words: “of the first and second circuits,” so as to confine the fee of the five dollars to these circuits only. Senate Journal 1906, P. 427. As thus amended the joint resolution was passed and returned to the House; the Senate amendment concurred in and the joint resolution adopted.

So that it now reads: “The costs of appeal in any case appealed to the Courts of Appeal of the first and second circuits, shall not exceed five dollars.” (Art. 106 as amended by the 23rd amendment to the Constitution, adopted Nov. 6th, 1906, Act No. 137, Sec. 6, 1906.)

There is likewise judicial authority for the interpretation we have put upon the amendment referred to.

In State ex rel Patton et als vs. Shakespeare et als, 32 A. 1200, the question was whether an election for Mayor and Administrators in the City of New Orleans held on the second Monday of November, 1880, in accordance with the Acts of 1870 E. S. 1871 and 1877 fixing that day for such election, was lawful in view of the fact that the constitution of 1879 provided the municipal election in the City of New Orleans should be held on the same day as the general state election, the latter election being fixed by the Constitution for the Tuesday next following the third Monday in April.

The articles of the constitution of 1879 reads as follows:

‘'Art. 191. Until otherwise provided by law the general State election shall be 'held once in every four years, on the Tuesday next following the third Monday in April.”

“Art. 192 Parochial and the municipal elections in the Cities of New Orleans and Shreveport shall be held on the same day as the general State elections, and not oftener than once in four years.”

The Acts of 1870-71 and 77, as stated, provide that the municipal election shall be held once in every four years on the second Monday of November. The Court in an elaborate and veil consic.eied opinion, pronounced by the Chief Justice, held that the Constitutional provisions quoted were not intended to and did not abrogate existing statutes on the subject of the day when municipal elections should be held in the City of New Orleans; that the articles of the constitution were contingent anti not self acting, and that until the General Assembly otherwise provided, the pre-existing statutes fixing the second Monday in November as the day for holding such elections were in full force and effect. See also State ex rel etc. vs. Hicks 837 and City of New Orleans vs. Wood & Bro. 34 A. 733.

We conclude, therefore, that Sec. 7 of Act 136 of 1880 has not been changed, affected or repealed by the amendment of paragraph four of Art. 131 of the Constitution; that the clerk of this Court is entitled to charge and retain as his compensation for filing records of appeal from any of the district Courts from which appeals are returnable to this Court, the sum cf fifteen dollars when the amount involved is less than $500.00 exclusive of interest and twenty-five dollars in others; and that as the clerk has charged in the instant cause the fee allowed him by law, the rule is discharged.

Feby. 18th, 1907.