State Ex Rel. Garland v. Guillory

On Application for Rehearing. This court has reviewed, in the cases of State ex rel. Porterie, Attorney-General, et al. v. Walmsley, Mayor, et al.,183 La. 139, 162 So. 826, and State ex rel. Porterie, Attorney General, et al. v. Matt G. Smith et al., 166 So. 72,¹ the proclamation and message of Governor John M. Parker, in connection with the calling of the Constitutional Convention of 1921, together with the address made by the president of the Constitutional Convention, the Honorable Hewitt Bouanchaud, making clear that it was the intention and purpose of the delegates to the Constitutional Convention in 1921, to revise the Constitutions of 1898 and 1913, by deleting and changing provisions in these former Constitutions, which guaranteed certain rights under the so-called "Home Rule Clauses," and revising these articles so as to grant, in effect, greater power to the Legislature, under the Constitution of 1921, than that granted by the former Constitutions. The idea was to have an elastic and flexible Constitution, adaptable to the present and the future.

In order to direct attention to exactly what was done by the Constitutional Convention of 1921 in carrying out its avowed intention, it may be observed that the Constitutions of 1898 and 1913 contained article 110, which was as follows:

"The General Assembly shall not have power to increase the number of district judges in any district."

The Constitution of 1921 abrogated article 110 of the Constitutions of 1898 and 1913 for article 7, § 34 of the Constitution of 1921, which provides:

"The Legislature may rearrange the judicial districts, and by a two-thirds vote of the membership of each house, may increase or decrease the number of judges in any district."

Article 114 appeared in the Constitutions of 1879, 1898 and 1913, and reads as follows:

"No judge of any court of the State shall be affected in his term of office, salary, or jurisdiction as to territory oramount, during the term or period for which he was elected or appointed. Any legislation so affecting any judge or court shall take effect only at the end of the term of office of the judge or judges, incumbents of the court, or courts, to which such legislation may apply at the time of its enactment. This article shall not affect the provisions of this Constitution relative to impeachment or removal from office." (Italics ours.)

Article 114 of former Constitutions was deliberately changed by the Constitution of 1921, and appears as article 7, § 40, and reads as follows:

"No judge of any court of the State, except as otherwise provided in this Constitution, shall be affected in his term of office, salary, or jurisdiction as to amount, during the term or period for which he was elected or appointed; and any legislation so affecting any judge or court shall take effect only at the end of the term of office of the judge or judges, incumbents of the court, or courts, to which such legislation may apply at the time of its enactment." (Italics ours.)

This change was absolutely essential and necessary by reason of the abrogation of article 110 of the Constitutions of 1898 and 1913 and the inclusion of article 7, § 34, in the Constitution of 1921, which granted to the Legislature the right to rearrange the judicial districts.

These changes in the Constitution of 1921 are most convincing of the intention of the Constitutional Convention of 1921, to vest the Legislature with enlarged authority to rearrange the judicial districts of this state.

It is to be noted that article 7, § 34, of the Constitution of 1921, supra, does not limit the authority of the Legislature to rearrange the judicial districts at the expiration of a term of office (as provided for in the previous Constitutions), but the authority to rearrange the judicial districts is granted with no restricting clause in this particular article.

In the case of Fontenot et al. v. Young et al., 128 La. 20,54 So. 408, 412, which was decided on February 13, 1911, an attack was made on the constitutionality of Act 15, passed by the General Assembly of 1910, which Act purported to create, from the citizens and territory of St. Landry parish, a new parish to be called "Evangeline." In the course of the opinion, this court passed upon certain articles of the Constitution of 1898, which are interesting in the light of changes made in the Constitution of 1921, which, in effect, abrogated these articles:

"It is said that article 114 of the Constitution prohibits interference with the judge of the district court, either as to his territorial jurisdiction or his compensation during the term for which he was elected. But (waiving the fact that the supposed interference was by the Constitution itself, and not by mere legislative enactment) a sufficient answer to that contention is that there was no such interference, the creation of the new parish, within the limits of the old, making no change in the territorial jurisdiction of the judge, and there having been no attempt to make any change in his compensation.

"It is further said that the amendment to article 108, redistricting the state and assigning the parish of Evangeline to the Sixteenth judicial district, is not to take effect until January 1, 1912, and that the new parish must therefore remain unassigned and without a court until that time; and hence cannot be said to exist.

"But here we have to deal with two constitutional amendments adopted at the same time — the one, general in character, in that it deals with all the parishes in the state, and concludes with the proviso that it shall take effect from and after January 1, 1912; the other, a special enactment, dealing exclusively with the parish of Evangeline, providing that said parish shall be permanently organized on January 1, 1911, and that it ``shall form part of, and be included in, the Sixteenth judicial district,' and ``that the judge of said district shall hold regular terms of his court for the parish of Evangeline, at the parish seat, at such times as he may fix, according to law.'

"And there can be no doubt, as it seems to us, construing the two amendments together, that the purpose was that the general redistricting should take effect on January 1, 1912, but that the parish of Evangeline should become part of the Sixteenth judicial district on January 1, 1911."

The court also said, on page 28, of 128 La., 54 So. 408, 411:

"It may be, as counsel think (though we find it unnecessary to express any opinion upon the subject), that, save for the matter of representation, the parish of Evangeline might have been established and organized without amending the Constitution, but that possibility did not deprive the General Assembly of the authority to propose, or the people of the state of the power to adopt, any such amendment, not in conflict with the Constitution of the United States, as they saw fit."

Rearrangement of judicial districts under the Constitution of 1898 was accomplished by constitutional amendments. Article 108 of this Constitution was amended by Act 216 of 1906, and articles 107 and 108 were amended by Act 311 of 1910, both of which acts were adopted as constitutional amendments, and the number of districts increased by the latter amending act from "not less than twenty nor more than twenty-nine judicial districts, the parish of Orleans excepted," provided for in the Constitution of 1898 to, "not less than twenty nor more than thirty-two judicial districts, the Parish of Orleans excepted."

Although the above quotation from Fontenot v. Young, supra, would seem to indicate there was some doubt as to the necessity of a constitutional amendment to accomplish this object, it is significant that the Legislature of 1910 pursued the constitutional amendment method of accomplishing redistricting.

Unquestionably, the Constitutional Convention, which framed the Constitution of 1921, was familiar with the cumbersome method necessary to accomplish redistricting under the Constitutions of 1898 and 1913, and deliberately changed Articles 110 and 114 of these Constitutions by incorporating article 7, §§ 34 and 40, in the Constitution of 1921, so as to leave no doubt of the Legislature's authority to rearrange judicial districts without the necessity of a constitutional amendment.

This court finds itself without authority or precedent to constitute itself a seven-man Constitutional Convention to rewrite the Constitution of 1921, in order to deny the clear grant of authority to the Legislature to rearrange judicial districts. In times past, this court has expressed itself in no uncertain terms as to its lack of authority to disregard clear and unambiguous grants of authority by the Constitution, as follows:

"We say ``elsewhere in the Constitution,' because, if the power is expressly granted, we disclaim the right to limit or control it by considerations outside of the Constitution. We are not the makers but the expounders merely of the paramount law. We cannot add one jot or tittle to its terms. We cannot, by glosses and interpretations, subtract one particle from its substance. It would be rebellion in a Judge to say that a plain and unqualified grant of power given by the Constitution to a particular department of the government was null, because he thought it was against ``common right.' And it would be an assumption of sovereign authority for the Judge to say: ``I will construe, qualify and pare away this unqualified grant of power, so as to make it consort with my ideas of common right.'

"Fixing our eyes, then, on Article 97 of the Constitution, as the source and measure of the legislative power in this instance, we find it to be untrammeled by any conditions or reservations. It says simply that the class of officers to which the Sheriff belongs ``shall be removable by an address of a majority of the members of both Houses.'" State of Louisiana, on the Relation of John M. Bell v. Joseph Hufty, 11 La.Ann. 303, at page 308.

Finally, it is said that we held that two-thirds of the membership was two-thirds of a quorum, and therefore the act could be passed by less than a majority of the votes of the elected members of each House. We gave expression to no such idea. The opinion plainly states that there is a clear distinction between the terms requiring the votes of two-thirds of the membership of each House required to increase the number of judges, and other provisions of the Constitution requiring two-thirds of the members elected to each House to pass certain kinds of legislation.

The former means two-thirds of the quorum present, when more than a majority of those elected to each House have voted on a bill; the latter means two-thirds of the entire membership authorized to be elected to each House.

Rehearing refused.

O'NIELL, C.J., and ROGERS, J., adhere to their dissenting opinions.

ODOM, J., adheres to his original dissent.

¹ 184 La. 263.