Walmsley v. O'Hara

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] By Act No. 20 of the First Extra Session of 1935, section 16 of the city charter of the city of New Orleans (Act No. 159 of 1912, as amended), creating the board of commissioners of the police department, and section 17 of the city charter, creating the board of commissioners of the fire department, were expressly repealed, and new police department and new fire department boards were created by the act, composed of new members to be appointed by the Governor of the state.

Before Act No. 20 of the First Extra Session of 1935 had goneinto effect, the district judge, Hon. Hugh C. Cage of the civil district court, at the instance of respondents, issued atemporary restraining order, followed by a preliminary injunction, prohibiting and restraining relators, before they hadqualified as members of the new police and new fire department boards, as appointees of the Governor, from exercising the duties of the offices to which they had been appointed, and relegated relators to an ouster suit against respondents, the alleged members of the old police and fire department boards, who had been legislated out of office by Act No. 20 of the First Extra Session of 1935, which had abolished these boards, by the express repeal of sections 16 and 17 of the city charter creating them, Act No. 159 of 1912.

These proceedings were had, without the district judge declaring Act No. 20 of the First Extra Session of 1935 unconstitutional, although the constitutionality of the act had been attacked by respondents.

Relators have applied to this court for writs of certiorari and prohibition ordering respondents to desist from further proceedings and in the execution of the judgment herein rendered, until final determination of the constitutionality of the act by the court of last resort.

Act No. 20 of the First Extra Session of 1935, in the exercise of the police power of the state, creates a new police board and a new board of commissioners of the fire department of the city of New Orleans, and repeals any provision of law or of the charter of the city of New Orleans, Act No. 159 of 1912, in conflict with the provisions of the new act.

Act No. 20 of the First Extra Session of 1935 therefore is, prima facie, the legislative exercise of the police power of the state, in the creation of these two new boards, which operate, in relation to the state's police power, in the preservation of the public peace and security, and in the preservation of public safety to life and property against fires.

The Legislature declares that Act No. 20 of the First Extra Session of 1935 has been enacted, in the exercise of the unabridged and unrestricted police power of the state reserved to it by the Constitution of 1921, while the city of New Orleans, the creature of the state, the sovereign, denies the extent of the police power thus claimed. Section 3, p. 77, Act No. 20 of the First Session of 1935.

As the police power is inherent in the state, and is the peculiar badge and prerogative of its sovereignty, this court cannot presume any limitation upon the state's police power. Statutes are always presumed to be constitutional, and this presumption will be indulged in by the courts until the contraryis clearly shown.

8 Cyc. 803, verbo, Constitutional Law; O'Gorman Young v. Hartford Fire Insurance Co., 282 U.S. 251, 257, 51 S. Ct. 130, 75 L. Ed. 324, 72 A.L.R. 1163; Sinking Fund Cases, 99 U.S. 700, 25 L. Ed. 496; Toombs v. Citizens' Bank, 281 U.S. 643, 647, 50 S. Ct. 434, 74 L. Ed. 1088.

As said in Sinking Fund Cases, 99 U.S. 700, 718, 25 L. Ed. 496: "Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond arational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." (Italics ours.)

Legislative acts are entitled to great respect and are presumed to be constitutional. To destroy this presumption, they must be shown manifestly to violate the organic law. City of New Orleans v. Robira, 42 La. Ann. 1098, 8 So. 402, 11 L.R.A. 141; State v. Rose, 125 La. 462, 51 So. 496, 26 L.R.A. (N.S.) 821; Duffy v. City of New Orleans, 49 La. Ann. 114, 21 So. 179; State ex rel. Fortier v. Capdevielle, 104 La. 561, 29 So. 215.

The statement of the district judge that Act No. 20 of the First Extra Session of 1935 can be "easily declared unconstitutional" is a matter which can be determined only on the trial of the merits as to the constitutionality of the act, which has not yet been passed upon in the court below.

Most assuredly, laws are not to be "easily" presumed to beunconstitutional, if constitutional government is to continue in the states of the union and our free institutions are to be preserved.

The presumption, therefore, is that Act No. 20 of the First Extra Session of 1935 is constitutional.

It was only by erroneously reversing the presumption of the constitutionality of Act No. 20 of the First Extra Session of 1935 that the district judge found any basis for the issuance of the injunction in this case.

In State ex rel. Saizan v. Judge, 48 La. Ann. 1501, 21 So. 94, the relators had been appointed and commissioned by the Governor of the state, under the provisions of Act No. 94 of 1884, as three additional or new police jurors on the police jury of St. Landry parish.

This act did not confer upon the Governor the power to remove any member of the police jury of that parish.

Act No. 20 of the First Extra Session of 1935 authorizes the Governor to appoint all of the new members of the new police and fire boards of the city of New Orleans. As already stated, this act abolished the old boards, and legislated out of office the old members of these boards.

This act did not confer upon the Governor any power of removal of the members of the old boards. The Legislature had created these old boards. The Legislature had abolished these old boards.The Legislature had removed all the members of these old boards. The new members of the new boards were not, therefore, thesuccessors of the old members of the old boards, which had been abolished. State v. Goff, 135 La. 335, 65 So. 481.

Nor in State v. Judge, above cited, were the additional or new members of the police jury of St. Landry parish the successors of any members of the police jury of that parish.

It is clear, therefore, that neither in the case of the appointment of the additional or new members of the police jury of St. Landry parish, under Act No. 94 of 1884, nor in the case of the appointment of the new members of the new boards under Act No. 20 of the First Extra Session of 1935, did the Governor, byhis appointment, remove any member from the police jury of that parish, nor any member of the old boards of the city of NewOrleans, for they had already been removed by the Legislature.

The old members of the old boards are not claiming the offices of the new members of new boards, created by Act No. 20 of the First Extra Session of 1935; but they are claiming the old offices of the old boards, created by sections 16 and 17 of the city charter, solely on the ground that Act No. 20 of the First Extra Session of 1935, creating the new boards and the new members, and abolishing the old boards, is unconstitutional.

Relators and respondents, therefore, are not claiming the sameoffices, but different offices, under different laws.

Under the presumption of the constitutionality of Act No. 20 of the First Extra Session of 1935, the offices of respondents have been abolished, and they are out of office. The only right, under such presumption, that respondents have is the right to bereinstated in office, in the event Act No. 20 of the First Extra Session of 1935 is declared to be unconstitutional by the court of last resort. No question is raised against such persons instituting intrusion into office on quo warranto proceedings.

It is rank sophistry to pretend that officers, whose officeshave been abolished, have a superior prima facie right to bemaintained in office, over the new claimants to the new offices which the Legislature has created, since the presumption of law is in favor of the constitutionality of the new act, and therefore necessarily in favor of the superior prima facie right of the new claimants to the new offices created by that act.

It follows that relators were illegally and wrongfully enjoined from qualifying and taking possession of the new offices to which they had been appointed by the Governor of the state, since,under their superior prima facie right as the new claimants to these new offices, they are entitled, primarily, to qualify and to exercise the functions of their offices, and to be maintained in the possession of same until the final determination by the court of last resort of the constitutionality of Act No. 20 of the First Extra Session of 1935. 46 C.J. p. 1007, § 215.

In the case of Guillotte v. Poincy, 41 La. Ann. 333, 6 So. 507, 5 L.R.A. 403, Guillotte was the actual incumbent, duly appointed, commissioned, and qualified, of the office of member of the board of flour inspectors for the city and port of New Orleans. Guillotte was holding office under an existing law, presumed tobe constitutional, and therefore he had a superior prima facieright to the office. The board of flour inspectors had not been abolished, and the old members had not been removed by a new act creating a new board and new members to be appointed by the Governor, as in the case at bar. In the Guillotte Case, Poincy was acting under a commission from the Governor, attacked by Guillotte as invalid. Guillotte and Poincy were claiming the same office. Under the presumption of the constitutionality of the law under which Guillotte held his office, he was in office, and was therefore clearly entitled to an injunction to maintain the status quo.

In the case at bar, under the presumption of the constitutionality of Act No. 20 of the First Extra Session of 1935, respondents are out of office, and the only right that they have is the right to be reinstated, in the event that Act No. 20 of the First Extra Session of 1935 is finally determined to be unconstitutional by the court of last resort.

The presumption that laws are constitutional, unless they are shown to be manifestly unconstitutional, is founded in a sound, wise, and necessary public policy.

If every important act of a Legislature can be attacked, byanticipation, as unconstitutional, and be presumed to beunconstitutional, adequate law enforcement in a state would become hampered to such extent as to become almost impracticable; and every appointee of the executive, under the presumption of illegality, could be enjoined from qualifying, and thus bring about absolute confusion in the administration of public affairs. State v. Judge, 48 La. Ann. 1501, 1517, 21 So. 94.

For this very reason it was held in State v. Judge, 48 La. Ann. 1501, 1516, 21 So. 94, 101, that: "It is the bounden duty of the judiciary to give some force and effect to the acts of the executive. His acts are not to be presumed illegal and utterly wrong upon a mere conclusion of law announced by a district attorney. The parties enjoined in this case had not gone intooffice under their commissions; they had not usurped any office;but, before they had taken any steps whatever, they were ordered and forced (as we have said), as plaintiffs, to primarilyvindicate their rights, and the authority of the executive in anew suit. The district judge reversed the presumptions as to the validity of the governor's action, and threw the judiciary department into immediate and direct clash with the executive department." (Italics ours.)

In the case at bar, the relators, the appointees of the Governor, had not gone into office under their commissions; theyhad not usurped office; but the action of the executive in appointing relators to office was paralyzed, and relators were tied up, by injunction in the exercise of the functions of their offices by anticipation, and forced to remain powerless to act, until they should themselves have instituted legal proceedings to have themselves declared rightfully entitled to the offices to which they had been appointed.

The writ of prohibition issued in State v. Judge, above cited, was perpetuated and the injunction was set aside.

T. Semmes Walmsley, mayor of the city of New Orleans, Dr. Frank R. Gomila, commissioner of public safety of the city of New Orleans, and Frank J. Brennan, members of the old police board of the city of New Orleans, created by section 16 of Act No. 159 of 1912, as amended, are plaintiffs in injunction in suit No. 211529 in division A of the civil district court for the parish of Orleans against the new appointees of the new police board of the city of New Orleans, created by Act. No. 20 of the First Extra Session of 1935, to wit: George Reyer, superintendent of police of the city of New Orleans; Dr. Joseph A. O'Hara, president of the state board of health; and Robert Maestri, commissioner of the department of conservation of the state.

And T. Semmes Walmsley, mayor of the city of New Orleans, Dr. Frank R. Gomila, commissioner of public safety, and Alfred Miester, members of the old board of commissioners of the fire department of the city of New Orleans, created by section 17 of Act No. 159 of 1912, as amended, are plaintiffs in injunction in suit No. 211538 in division A in the civil district court for the parish of Orleans against the new appointees of the new board of commissioners of the fire department of the city of New Orleans, created by Act No. 20 of the First Extra Session of 1935, to wit: John M. Evans, chief engineer of the fire department of the city of New Orleans; Seymour Weiss, president of the board of commissioners of the port of New Orleans; and Richard J. Gregory, register of voters of the parish of Orleans.

The opinion we deliver to-day does not touch the constitutionality vel non of Act No. 20 of the First Extra Session of 1935. That matter is left open.

2. We consider the matters involved in this case to be of such importance as to require the exercise of the control and general supervision over inferior courts, granted to this court by section 10 of article 7 of the present Constitution.

The "matter in dispute" in such a case is not measured by the value of the offices of relators, if any, and this court has jurisdiction in the present proceeding. State v. Judge, 48 La. Ann. 1501, 1515, 21 So. 94; Brunner Mercantile Co. v. Rodgin,130 La. 358, 57 So. 1004; Loeb v. Collier, 131 La. 377, 59 So. 816; Seals v. Funches, 147 La. 600, 85 So. 604.

It is therefore ordered that the rules nisi issued herein be made absolute.

It is further ordered that writs of prohibition issue to the Honorable Hugh C. Cage, judge of division A of the civil district court of the parish of Orleans; to the city of New Orleans, appearing through T. Semmes Walmsley, mayor, and Dr. Frank R. Gomila, commissioner of public safety of that city; to T. Semmes Walmsley, mayor of the city of New Orleans, and Dr. Frank R. Gomila, commissioner of public safety, appearing in their respective individual capacities, as plaintiffs in the injunction suits against relators, No. 211529 and No. 211538 in division A of the civil district court for the parish of Orleans; and to T. Semmes Walmsley, mayor of the city of New Orleans; Dr. Frank R. Gomila, commissioner of public safety of the city of New Orleans; and Frank J. Brennan, appearing in suit No. 211529 in said court, as plaintiffs in injunction and as members of the old police board of the city of New Orleans, created by section 16 of the city charter of the city of New Orleans, as amended; and to the old police board of the city of New Orleans, represented by said members and appearing as plaintiff in that suit. And to T. Semmes Walmsley, mayor of the city of New Orleans; Dr. Frank R. Gomila, commissioner of public safety of the city of New Orleans; and Alfred Miester, appearing in suit No. 211538 in said court as plaintiffs in injunction and as members of the old board of fire commissioners of the fire department of the city of New Orleans, created by section 17 of Act No. 159 of 1912, as amended; and to the old board of commissioners of the fire department of the city of New Orleans, created by section 17 of Act No. 159 of 1912, as amended, and represented by said members in that suit, prohibiting respondent judge and respondents, collectively and individually, and the city of New Orleans and respondent boards from proceeding further in said suits, and from the execution of the judgments rendered in said suits, enjoining and restraining relators George Reyer, superintendent of the police of the city of New Orleans, Dr. Joseph A. O'Hara, president of the state board of health, and Robert Maestri, commissioner of the department of conservation of the state, appointees of the Governor as new members of the new police board of the city of New Orleans, created by Act No. 20 of the First Extra Session of 1935; and enjoining and restraining relators John M. Evans, chief engineer of the fire department of the city of New Orleans, Seymour Weiss, president of the board of commissioners of the port of New Orleans, and Richard J. Gregory, register of voters of the parish of Orleans, appointees of the Governor, as new members of the new board of commissioners of the fire department of the city of New Orleans, created by Act No. 20 of the First Extra Session of 1935, from qualifying, organizing, taking possession of their offices, and discharging their duties as members of said new boards.

It is further ordered that the writs of prohibition herein issued be perpetuated, and that the injunctions issued in the above-named suits in the civil district court for the parish of Orleans be, and are hereby, set aside and discharged.

O'NIELL, C.J., dissents and hands down reasons.

ROGERS and ODOM, JJ., dissent and concur in the dissenting opinion handed down by the CHIEF JUSTICE.