Wall v. Close , 203 La. 345 ( 1943 )

The object of this suit is to enjoin the enforcement of Act No. 111 of 1942, and the further expenditure of the $1,258,512 appropriated by the legislature for the biennium 1942-1944 to carry the act into effect.

The basis of the action is that Act No. 111 of 1942 is null and void because (1) it violates numerous sections of various articles of the constitution, and (2) it was never legally adopted since 36 House floor amendments incorporated into and admittedly forming a part of the statute as purportedly passed by both houses were never approved by the House of Representatives.

In the majority opinion it is pointed out that: "According to its title, Act 111 of 1942 is one providing for a Fiscal Code for the State of Louisiana, and providing for all procedures necessary to establish a unified, comprehensive code of procedures for the financial administration of the State and all State agencies." But this title is misleading and not indicative of the real object of the Act, in violation of Section 16 of Article III of the constitution, for a mere reading of the act will show its object is to constitute and create a Department of Finance (Section 1), and nowhere in the entire body of the act is the Fiscal Code even so much as mentioned, with the exception of the notation in Section 2, under the heading "Short Title," that "This Act shall be known and may be cited as ``The Fiscal Code of 1942.'"

The title of the act, in addition to declaring it is one providing for a Fiscal Code and the creation of a Department of Finance, also states it is one "providing for the merger orconsolidation into one department * * * of all of the * * *functions, property, rights, credits, records, appropriations,personnel, assets and liabilities of all executive andadministrative offices, boards, commissions and other Stateagencies now existing whether created in the Constitution or otherwise where said duties and functions are of a similar nature or character to the functions and duties provided herein conformable to the provisions of Article III Section 32 and Article V Section 1 of the Constitution of Louisiana and providing for the creation of additional functions, duties and procedures of said Department of Finance * * *." The title also provides "said Department shall be successor to Department of Finance as created by Act 47 [48] of 1940 * * *." (Brackets and italics mine.)

Inasmuch as one of the objects of Act No. 111 of 1942, as expressed in its title, is that it shall be successor to the Department of Finance created by Act 47 (48) of 1940, I deem it necessary to consider the present act in the light of its predecessor.

It appears that in 1940 the legislature passed Act No. 384, submitting to the electorate of this state a constitutional amendment reorganizing the executive branch of our state government by the establishment of a comprehensive system to administer its administrative and financial affairs. At the same session, Acts Nos. 47 and 48 were adopted as enabling acts. The latter act sought to create a Department of Finance that was declared invalid in the case of Ricks v. Close, 201 La. 242,9 So. 2d 534, for the reason that it fell when its parent act (Act No. 384 of 1940), upon which it depended for its constitutional existence, was declared to be null and void. Graham v. Jones,198 La. 507, 3 So. 2d 761. Despite this fact, as a careful study and analysis of Act No. 111 of 1942 and Act 48 of 1940 will demonstrate, the 1942 legislature, without the aid of additionalconstitutional authority, and while the constitutionality of Act No. 48 was before this court on rehearing in the Ricks case, under the pretext of merging and consolidating departments of the state government as authorized by Article 3, Section 32 of 1921, adopted its Act No. 111 of 1942, creating a new Department of Finance, in violation of Section 1 of Article V of the constitution.

While Section 1 of Article V of the constitution, after declaring "The executive department shall consist of a Governor, Lieutenant Governor, Auditor, Treasurer, Secretary of State, Register of the Land Office, Commissioner of Agriculture and Immigration, and Commissioner of Conservation," does authorize the legislature to consolidate any of these offices "except that of Governor, Lieutenant Governor, Treasurer, and Secretary of State," it does not authorize the legislature to create a newdepartment of the state such as was done in this case — that is, the Department of Finance.

This court, in its recent decision in the Ricks case [201 La. 242, 9 So. 2d 538], held that "The provisions in Acts Nos. 47 and 48, creating the Department of Finance as an administrative department of the Office of Governor, are violative of Section 1 of Article V of the Constitution." (Italics mine.)

These acts (48 of 1940 and 111 of 1942) are, for all intents and purposes, the same. In fact, Act No. 111 of 1942 is far more extensive and sweeping than was the former act, affecting, as it does, the functions and duties of our elected and administrative officials and reaching so far into every sphere of our state government that only the judiciary and a few named departments escape its grasp. It is not hard to imagine that by the simple means of a single amendment, these too, in time, will be included if the act is permitted to stand.

Moreover, the legislature, under the guise of merging and consolidating into one department all of the executive and administrative offices, boards, commissions, and other state agencies now existing, whose duties and functions are of a similar nature or character, as authorized by Section 32 of Article III of the constitution, has, in fact, stripped them of certain of the functions and duties delegated to them by the constitution in order to give life to the new department of state government created by it without, in truth, merging or consolidating these administrative offices, boards, commissions, and agencies. This is not only in direct conflict with the express letter of the constitution, but it is an ostentatious flaunting of its very spirit as well.

Act No. 111 of 1942 is further violative of the mandatory command in Section 32 of Article III of the constitution "to reduce the number of officers at the end of their current term" in the event of such consolidation or merger, for the act not only fails to make any provision for the reduction of officers at the end of any term, but creates, judging from the specific provisions of the act and the appropriation of $1,258,512 for the 1942-1944 biennium, a number of new officers whose salaries range from $8,000 a year down, to say nothing of the fact that the duties and functions of the various executive and administrative offices, boards, commissions, and agencies thus sought to be merged are far from similar in either nature or character.

In the majority opinion it is conceded that if by the adoption of Act No. 111 of 1942 the legislature did in fact create a new executive department or has stripped the executive and administrative offices, boards, and other agencies now existing of their duties and functions without reducing the offices at the end of their current term and without in fact merging these offices, as contemplated by Section 32 of Article III of the Constitution of 1921, the act would be unconstitutional. But in order to circumvent these constitutional barriers, it is declared in the majority opinion that the act does not in fact create a new executive department and that it does not in fact strip any offices in the executive department of the governor of any of the duties or functions conferred upon them, but instead, states the author of the majority opinion: "Clearly * * * the functions of the Director of Finance and the officers serving in or under that department are to assist the Governor and the Legislature in gathering the data which are to form the basis of the appropriations for the different departments and agencies of the State. In no way may these officers dictate or dominate the financial policies of either the Executive or the Legislative Department of the State. The Department of Finance is in no sense, therefore, a department of the Executive Branch of the government. It is no more so thanwould be an expert accountant or auditor employed by theExecutive Department of the State to gather data necessary toguide that department in formulating its financial plans." However, the same author after reiterating "that the act does not purport to merge any of the departments into one department," contradicts this statement by concluding: "What it does, and allit does, is to transfer certain functions of certain nameddepartments to the Department of Finance." (Italics mine.)

It is my opinion that therein lies the fallacy of the majority opinion, unless we are to assume that the sponsors of Act No. 111 of 1942 and the members of the legislature did not know what they were doing, for, as hereinabove pointed out, it is specifically declared in the very title of the act that one of its objects is to provide "for the merger or consolidation intoone department * * * of all of the * * * functions, property,rights, credits, records, appropriations, personnel, assets and liabilities of allexecutive and administrative offices, boards, commissions andother State agencies now existing whether created in theConstitution or otherwise where said duties and functions are ofa similar nature or character to the functions and dutiesprovided herein conformable to the provisions of Article IIISection 32 and Article V Section 1 of the Constitution ofLouisiana * * *." (Italics mine.)

Furthermore, immediately following this title, in a preamble, the sponsors and the members of the legislature stipulate:

"Whereas, the Constitution of Louisiana, in Article III, Section 32 and Article V, Section 1 recognizes the need of keeping the executive and administrative departments of the State abreast of the times and capable of fulfilling the social and economic demands made upon the State, and, for that purpose, authorizes the reorganization of the executive and administrative departments by the merger or consolidation into the Department of Finance of all executive and administrative offices, boards, or commissions, whether created in the Constitution or otherwise, whose duties, or functions are of a similar nature or character to those established in said Department;

"Therefore, the Legislature at this time deems it expedient and proper to consolidate into a department to be known as the Department of Finance the functions and powers hereinafter enumerated, heretofore exercised wholly or in part by other executive and administrative offices, boards, commissions, or other State agencies, as authorized by the Constitution."

That the legislators were cognizant of the purposes of the act and its sweeping effect is reflected by the following comment of one of its members, Representative Theo. F. Cangelosi, in the explanation of his vote (extended into the House Journal at page 1056):

"There are serious doubts in my mind as to the advisability of giving any Department of the State such extensive and far-reaching powers as are given the Department of Finance under the Fiscal Code. This is especially questionable when the head of the Department having such power and control is an appointive official and not elective by the people. I particularly doubtthe wisdom of giving such powers of control and supervision overall departments and institutions including those departmentswhose heads are elected by the people." (Italics mine.)

A mere reading of the act will completely refute the conclusions that the functions of the Director of Finance are no more than would be those of an expert accountant or auditor employed by the executive department of the state to gather data to aid in the formulation of the financial policies of the state, or that the Director of Finance and those under him act only as aides and adjuncts to the other constitutional officers in discharging and performing the duties and functions of their offices.

I entertain serious doubt that the legislature would have adopted Act No. 111 of 1942 thus emasculated. In any event, I have no doubt that they would not have appropriated the stupendous amount of $1,258,512 for the employment of expert accountants or auditors to guide the executive department in formulating its financial plans. An examination of the general appropriation act for the same period shows that the legislature appropriated the sum of $200,000 ($100,000 for each year) for the operation of the Supervisor of Public Funds. A further examination of the same appropriation act shows that, added to the appropriation of the Supervisor of Public Funds, the appropriations for the entire executive department created under Section 1 of Article V of the Constitution of 1921, excepting the Department of Conservation, that is, the Governor, Lieutenant Governor, Auditor, Treasurer, Secretary of State, Register of the Land Office, and Commissioner of Agriculture, only slightly exceed the appropriation for this new department created by Act No. 111 of 1942, which the majority opinion, in effect, declares is no more than an adjunct or aide to the other executive offices. In addition to this, we find that the salaries to be paid the Director of Finance and certain other subordinate officers to be created by him exceeds that paid to any of the executive officers created under the constitution, the governor alone excepted.

By way of comparison, we find the appropriation for these same named executive departments for the biennium 1932-1934, butincluding the Supervisor of Public Accounts, amounted to only $578,695. In other words, the amount appropriated to operate the so-called "Fiscal Code" would have been sufficient not only to operate all of these executive departments for the biennium 1932-1934, but, in addition, there would have been enough left over under the same appropriation act, to defray the expenses of the Soldiers' Home, New Orleans Hospital and Dispensary for Women and Children, State School for the Blind, State School for the Deaf, State Industrial School for Girls, Board of Charities and Corrections, Louisiana Tuberculosis Commission, and the Milne Home. See, page 64 et seq., of the Acts of 1932.

Without discussing in detail the merits of the further contention urged by the plaintiff that the act is also violative of the constitutional mandate that "Every law enacted by the Legislature shall embrace but one object, and shall have a title indicative of such object," Section 16 of Article III, suffice it to say that a study of the act reveals that in addition to having a title entirely misleading as to the real object of the act, as hereinabove pointed out, it is so intricate, involves so many departments and agencies of the state, and extends into so many and diverse spheres of government that it is really difficult to determine just how many objects it does embrace and just what objects its title is indicative of. I think the authors of the act themselves were cognizant of the plurality of its objects, for the repealing clause of the title abolishes "all laws or parts of laws in conflict or inconsistent with this Act and * * * the functions of certain agencies as required to effectuate theobjects of this Act," while in the clause referring to the creation of the additional functions and duties that are to be conferred upon this new department of the state, it is stated these shall be such as are "necessary to effectuate the said objects and purposes." (Italics mine.)

When this question was under consideration in the case of Graham v. Jones, supra [198 La. 507, 3 So. 2d 774], this court, in disposing of the same, said:

"In submitting Act 384 of 1940 to this test, we are first confronted with its title, which specifically points out the plural character of the proposed changes in the fundamental law. The title of the statute reads in part: ``Proposing amendments to the Constitution of Louisiana, relative to the form of organization of the Executive Department of the State government and a unified and comprehensive system of financial administration, by articles and sections as follows: * * *.'

"It will be readily observed that according to the title of Act 384 of 1940, the text thereof is to embrace proposedamendments and not merely one proposed amendment to the Constitution. The title of the statute also discloses that the object of the proposed amendments is to change not only the form of the State government, but also to establish a new system of financial administration."

Another striking example of the unconstitutionality of this act is evidenced by the fact that it authorizes the transfer of appropriations, working capital, and property from one agency of the state to another. We held in the case of Graham v. Jones, supra, that such functions are within the exclusive province of the legislature and, therefore, that the transfer of them to the new executive department of state sought to be created was in violation of Articles II and IV of the constitution.

I am also of the opinion that the act is null and void for the reason that the 36 House floor amendments incorporated into and admittedly forming a part of the statute as purportedly passed by both houses were never, in fact, legally adopted by the House of Representatives.

Under the mandatory provisions of the Constitution of 1921, each house is compelled to keep "a journal of itsproceedings, and cause the same to be published immediately after the close of the session," the original being preserved in the offices of the Secretary of State. Section 15 of Article III. "The recitals in legislative journals are conclusive as to matters which the constitution requires to be entered therein, and cannot be impeached by verbal statements or other parol or extrinsic evidence, even for fraud or mistake * * *. * * * Nor can a journal be contradicted or amplified by loose memoranda made by clerical officers of the legislature." 59 C.J. 634, Section 198. See, also, State ex rel. Porterie v. Smith,184 La. 263, 166 So. 72, and the cases therein cited. (Italics mine.)

While the House Journal for 1942 affirmatively shows its Bill No. 40 (Act No. 111) was passed "as amended," it fails to show what disposition the House made of the 36 floor amendments sent up for consideration when the bill was up for third reading and final passage. See pages 1051-1056 of the House Journal for 1942.

In the majority opinion it is aptly pointed out that "* * * if the 36 House floor amendments were never approved by the House, the bill is invalid, because it is conceded that those amendments were incorporated into, and therefore became a part of, the bill as finally adopted by both houses * * *," but the author of the majority opinion concluded "* * * the presumptionis that the House did approve the amendments; and the fact thatthe House Journal fails to show what action, if any, was taken onthe amendments affords no ground for holding that the amendmentswere not in fact approved. We must necessarily presume that theywere approved." (Italics mine.)

The mere fact that the House finally passed the bill "as amended" does not necessarily indicate the 36 floor amendments were ever taken into consideration, much less adopted, for it appears from Page 469 of the House Journal that prior thereto, on June 5, the bill had been reported favorably by Section C of the House Committee on Judiciary with 8 committee amendments which were properly adopted by the House upon the motion of Representative Heintz. And the fact that the Senate, upon a substitute motion, when the matter was called to its attention by one of the senators who objected to the reading of the bill for final passage because there was nothing in the House Journal to show what disposition the House had made of these 36 floor amendments, returned the bill to the House for correction to conform with the original bill as amended by the 8 committee amendments or else for the formal adoption of the 36 floor amendments, in my opinion, clearly indicates these amendments were never even considered by the House, for the clerk of the House, on the same day, returned the bill to the Senate with the notation he was doing so at the direction of the Speaker and members of the House, although the Journal fails to reflect any such authorization was given the clerk by the House and also fails to reflect that its minute entries were ever corrected to show what action, if any, had been taken on these 36 floor amendments. Under these circumstances, I do not believe we are justified in assuming these 36 floor amendments were adopted by the House.

It is my further opinion that the constitutional mandate requiring each house to keep a journal of its proceedings contemplates that this journal shall include all of itsproceedings, in conformity with the rules and regulations adoptedby the two houses for the enactment of legislation. No one will doubt there is hardly a more elementary proceeding in democratic assemblies than the right of each and every member thereof to offer amendments to any proposed legislation for the consideration of the whole assembly prior to the final passage of such legislation. Consequently any sanction of laxity in the accurate reflection of the orderly adoption or rejection of such amendments in these journals, will ultimately result in the enactment of legislation so conglomerated and confused that it will be impossible to determine in just what condition the bill was finally passed. I think the necessity for keeping an accurate record of such proceedings is not only accentuated by the very rules adopted by each house of the legislative branch of our government requiring that these proceedings be actually and accurately entered in the journal, but also by the fact that a casual check of any of the journals of either of the two houses of the legislature for any of its sessions will disclose these rules have always been strictly adhered to. It seems to me that in the face of this unswerving adherence by both houses in entering every action taken on each and every amendment offered in their respective journals, the failure of the House Journal for the 1942 session to reflect such an entry in this one instance can only mean that no action was ever actually taken on these amendments. Certainly the manner in which the House ignored the Senate's request that the matter be corrected, as well as everything else in this particular case, points in that direction.

It is my opinion the injunctive relief granted the plaintiff by the lower court should be maintained and I, therefore, respectfully dissent from the views expressed in the majority opinion.